ADDRESSES 

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LE BARON BRADFORD COLT 






LIBRARY OF CONGRESS 



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ADDRESSES 



ADDRESSES 



BY 



LE BARON BRADFORD COLT 



BOSTON 

LITTLE, BROWN, AND COMPANY 

1906 



UERARY of CONGRESS 
Two Cooies Received 

APR 23 1906 

Copyright Entry 

<ZfA 23- 19 Ob 

CLASS CL XXc. No, 

COPY B. 



fft 



Copyright, igo6, 
By Le Baron Bradford Colt. 



All rights reserved 
Published March, 1906 



en 

O 



THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A. 



CONTENTS 

Page 

John Marshall i 

Address at the Celebration by Brown University and 
the Rhode Island Bar Association, February 4, 1901. 

The Protection of the President of the United 

States 45 

Address before the Annual Meeting of the New Hamp- 
shire Bar Association, Concord, March 3, 1902 

Law and Reasonableness yy 

Address before the Annual Meeting of the American Bar 
Association, Hot Springs, Virginia, August 27, 1903. 

Contributions of Rhode Island to the Ameri- 
can Union 109 

Address at the Louisiana Purchase Exposition, St. Louis, 
Missouri, Rhode Island Day, October 5, 1904. 

America's Solution of the Problem of Govern- 
ment 125 

Address before the City Council and Citizens of Boston, 
in Faneuil Hall, July 4, 1905. 



ILLUSTRATIONS 

Le Baron Bradford Colt Frontispiece 

John Marshall Facing page 30 



ADDRESSES 



JOHN MARSHALL 

Address before Brown University and the Members of the Rhode 
Island Bar Association on the one hundredth anniversary of the 
installation of John Marshall as Chief Justice of the United 
States, delivered in Sayles Memorial Hall, Providence, on Feb- 
ruary 4, 1 90 1. 

Ladies and Gentlemen : 

UPON the first meeting of the Supreme 
Court of the United States in the city 
of Washington, one hundred years ago 
to-day, John Marshall took his seat as Chief Jus- 
tice. This day has been appropriately called "John 
Marshall Day," and it is a fitting time for the Bar 
Associations, the Courts, and the representatives 
of our seats of learning, assembled together, to re- 
call the commanding and unique position the great 
Chief Justice occupies in our constitutional history, 
and to remind the people of the inestimable bless- 
ings which have flowed from his judicial labors. It 
is also fitting for the President of the great Federal 
Commonwealth, which bears the indelible impress of 
his genius, to request the Congress to observe with 



2 ADDRESSES 

appropriate exercises the centennial anniversary of 
the day he became the head of the Supreme Court 
and began his immortal work of upbuilding the 
Constitution. 

It was recently said with much truth : " John Mar- 
shall yet remains the great unlaurelled hero of early 
American history." His work is not generally known 
nor fully appreciated. Such is the common fate of 
the highest judicial achievements. From their nature 
they do not attract popular attention ; and yet a sim- 
ple entry on the docket of the Supreme Court of the 
United States may affect the destiny of the nation 
more than Webster's reply to Hayne, or Dewey's vic- 
tory in Manila Bay. We live under a government of 
law. Our supreme law is embodied in a written Con- 
stitution, and the judgments of the highest court on 
constitutional questions may involve the very exist- 
ence of the Federal Union. 

The life of Marshall has been called the constitu- 
tional history of the country from 1801 to 1835. He 
set and fixed in its proper place the keystone of the 
beautiful and symmetrical arch of States which now 
spans a continent. He carried the Constitution 
through its experimental and formative stages, de- 
fined its enumerated powers, and clothed them with 
an authority and living force commensurate with their 
purpose. He " gradually unveiled " the Constitution, 
in the words of Bryce, "till it stood revealed in the 



JOHN MARSHALL 3 

harmonious perfection of the form which its framers 
had designed." 

We are to-day what the Constitution as ex- 
pounded by John Marshall has made us. The 
character and supremacy of the national government 
we owe largely to him. Marshall was more than the 
interpreter of the Constitution. He was the creator 
of constitutional law as applied to a written Constitu- 
tion. His luminous judgments determined whether 
the Constitution should stand or fall. They proved 
the Constitution created, in the words of Chief Justice 
Chase, " an indestructible Union, composed of inde- 
structible States." They demonstrated that a Federal 
Union strong enough to perpetuate itself, and su- 
preme within its delegated powers, was not a menace 
to the independence of the States nor to individual 
liberty, but was the guardian and shield of both. 
They defined the relative rights of the States and the 
Federal government under the Constitution, involv- 
ing often the momentous question of sovereignty — 
the fatal rock on which Federal Unions are broken 
into fragments. They settled beyond challenge or 
debate the question of sovereignty as a judicial ques- 
tion arising under the Constitution. The only right 
to dissolve the Union which remained with the States 
after these adjudications was the right of revolution. 
They established the novel and striking feature of our 
political system that the construction and interpre- 



4 ADDRESSES 

tation of the supreme law rests with the judiciary 
department. They vindicated the supremacy of the 
Constitution over all citizens and all States. They 
proved beyond question that the Constitution created 
a government, a composite republic, a nation; not a 
league, a compact, or a mere confederacy. They un- 
doubtedly preserved the Union in 1861, when the 
attempt was made to settle constitutional questions 
by force of arms. Had not the judgments of the Su- 
preme Court, during the thirty-four years Marshall 
was Chief Justice, established the supremacy of the 
Constitution as opposed to the doctrine of State sov- 
ereignty, the Civil War would have been a war of 
conquest, and the Federaltie forever severed. "The 
Southern Confederacy, as the embodiment of political 
ideas," says Judge Phillips, " surrendered not to Grant, 
not to Sherman, not to Thomas or to Sheridan, but to 
the statesman, the jurist and sage, — John Marshall." 
The decisions of Marshall have instilled in us the 
worship of the Constitution. They have built up a 
national spirit. They have not led to the consolida- 
tion of the States, but to the consolidation of national 
sentiment. They are the foundation of the patriot- 
ism, affection, and pride which fill all our hearts 
as we look upon our country at the opening of a 
new century, and contemplate with emotion the proud 
position she occupies among the nations of the earth. 
They have elevated our form of government in the 



JOHN MARSHALL 5 

eyes of the world, and disproved the judgment of man- 
kind that a Federal Commonwealth is weak and un- 
stable. They have shown that, in the hands of an 
intelligent people, such a political system may exist 
in a perfect form for centuries, that it may extend 
over a vast area, peopled by different races, and may 
realize under such conditions its high ideal of com- 
bining the energy, patriotism, and freedom of a small 
republic, with the unity, security, and power of a great 
empire. Speaking of Marshall's decisions in an ad- 
dress before the American Bar Association, Edward 
J. Phelps declared : " They passed, by universal con- 
sent, and without any further criticism, into the fun- 
damental law of the land, axioms of the law, no more 
to be disputed. They have remained unchanged, un- 
questioned, unchallenged. They will stand as long as 
the Constitution stands. And if that should perish, 
they will remain, to display to the world the principles 
upon which it rose, and by the disregard of which it 
fell." 

Our national government was moulded and shaped 
by the master hand of John Marshall. To compre- 
hend the character and greatness of his work, it is 
important to understand the nature and tendency of 
the form of government which was organized under 
the Constitution. Of all political systems a Federal 
Commonwealth is the most complex, delicate, and 
elaborate. It can only exist among a highly civil- 



6 ADDRESSES 

ized people, who have been educated for generations 
in the art of civil government. It is an ideal gov- 
ernment. It is founded upon a compromise between 
opposite political systems, and it seeks to combine 
the advantages of each — the freedom of a small state 
with the unity and security of a consolidated em- 
pire. It is an artificial system ; and, inherently, it 
is perhaps the weakest known form of government. 
Based on a division of sovereignty, it is a sover- 
eign within sovereigns, a government within gov- 
ernments, a single state in some things and many 
states in other things, a unit in its external relations 
and on matters which affect the general welfare, and 
composed of many units in its internal government. 
States and cities have repeatedly striven to realize 
the Federal idea; but, with three 01 four exceptions, 
they have been successful only in an imperfect de- 
gree, and for a comparatively short period of time. 
The most illustrious exception is the United States. 
History teaches what we should expect from the na- 
ture and artificial character of its organization, — that 
the ever impending danger to this political system 
is not consolidation, but the weakness of the Federal 
bond. The forces which tend to direct the States to- 
wards the central union are less strong than the forces 
which tend to drive them away from it, because the 
ties of citizenship, local interests, and a common his- 
tory bind the people to the State and its autonomy. 






JOHN MARSHALL 7 

Federal unions have always perished from the weak- 
ness of the Federal tie, or from conquest. They have 
never grown into a consolidated state through the de- 
struction of the separate members of the union. It 
was the weakness of the Federal tie which constantly 
threatened the disruption of the Achaian League. 
And the same is true of the United Netherlands. 
The Swiss Confederation has never suffered from the 
strength of the central power, but rather from its 
inborn weakness. The history of our own Federal 
Union is familiar. We know that for three-quarters 
of a century after the adoption of the Constitution the 
grave peril, ever present, sometimes threatening, and 
once only averted by civil war, was disunion, not con- 
solidation. Historians have always recognized the in- 
herent weakness of a Federal form of government. It 
was not surprising, therefore, that in 1863 the emi- 
nent English historian and scholar, Freeman, after 
ten years of research and reflection on the subject, 
should have begun the publication of a work entitled 
" History of Federal Government from the Founda- 
tion of the Achaian League to the Disruption of the 
United States," in which he prophesied the exchange 
of ambassadors between the United States and the 
Confederate States before the year 1869. That Free- 
man never completed his work, that his prophecy 
proved false, was owing, in a large measure, to the 
constitutional decisions of Chief Justice Marshall. 



8 ADDRESSES 

Marshall's early conviction of the supreme danger 
which confronted the Federal Union is stated by 
Judge Story: "In his view the Republic is not des- 
tined to perish, if it shall perish, by the overwhelming 
power of the National Government, but by the resist- 
ing and counteracting power of the State sovereign- 
ties." Marshall met and overcame the danger by 
incorporating into the fundamental law the great fact 
that our Federal Constitution establishes a perpetual 
government complete within itself. 

Constitutions grow. They do not march alone. 
National spirit is the product of growth. It is not 
a sudden creation. A national constitution, to be 
effective and fulfil the purpose for which it is de- 
signed, must reflect the spirit and temper of the 
people. The life of such a constitution is dependent 
on the growth of a strong national sentiment. Our 
Federal Constitution at the time of its adoption 
was a creation. It did not represent a growth. 
It was an experiment, a hope, a dream. The people 
were full of apprehension and dire forebodings as 
to the result. They saw the spectre of a " kingly 
crown," the destruction of the States, the subversion 
of their liberties. They had not grown up to the 
national idea. Their spirit and temper, their laws 
and governments, were colonial. Their interests and 
affections, their habits, prejudices, and past history, 
bound them to the States. The Colony or State 



JOHN MARSHALL 9 

was their mother, the centre of their political life, and 
to her they owed allegiance first of all. They were 
citizens of Rhode Island, Massachusetts, Virginia, — 
not American citizens. 

Twelve years before Marshall took his seat, the 
Constitution, in the words of John Quincy Adams, 
had been " extorted from the grinding necessity of a 
reluctant people." The popular vote was undoubt- 
edly against its adoption. The spirit of the times 
is well illustrated by Patrick Henry, who exclaimed 
in the Virginia Convention of 1788, when speaking 
of the framers of the Constitution: "Who author- 
ized them to speak the language of ' We, the people' 
instead of ' We, the States '? States are the charac- 
teristics and the soul of a confederation. If the 
States be not the agents of this compact, it must be 
one great, consolidated, national government, of the 
people of all the States." It is seen in the adoption 
of the Constitution by the narrow majority of three 
in the New York Convention, ten in the Virginia 
Convention, and nineteen in the Massachusetts Con- 
vention, after the most strenuous labors of its advo- 
cates, and under the pressure brought about by the 
annihilation of public credit, the threatened paralysis 
of commerce, and the impending dissolution of the 
Confederation. It is manifested in bitterly denounc- 
ing as unconstitutional abuses of power Washington's 
proclamation of neutrality in 1793 on the outbreak 



10 ADDRESSES 

of the war between England and the French Repub- 
lic, and the ratification of Jay's treaty with England 
in 1795. It is exhibited in the statute of the State 
of Georgia inflicting the penalty of death on any 
one who should presume to enforce the process of 
the Supreme Court in the case of Chisholm v. State 
of Georgia, where the State was held liable for the 
payment of a private claim ; and in the case of the 
United States v. Peters, where the Governor of Penn- 
sylvania ordered out a brigade of militia to obstruct 
the service of a Federal writ. 

"Not a year went by," says McMaster, "but one 
or more States bade defiance to the Federal govern- 
ment." The Virginia and Kentucky resolutions of 
1798 and 1799 also bear witness to the want of 
national sentiment ; so, in like manner, the proposed 
amendment to the Constitution submitted by John 
Randolph : "The Judges of the Supreme Court and 
all other Courts of the United States shall be re- 
moved by the President on the joint address of both 
houses of Congress." The same state of public feel- 
ing is indicated in the popular revulsion against the 
Federalists which soon swept that party out of power, 
and later out of existence, and installed the opposition, 
then known as the Republican party, thirty days after 
Marshall became Chief Justice. 

For thirty-four years Marshall's decisions vindi- 
cated the necessity and value of the Constitution. 



JOHN MARSHALL 11 

They incorporated the national idea into the funda- 
mental law, and they have been a most potent factor 
in the development and promotion of the intense 
national spirit which now pervades the country. 

Marshall's soul was filled with the spirit of the 
Constitution, — the soul of the patriot and statesman 
as well as jurist. He loved the Constitution. It 
was his life. His judgment and affections bound 
him to it. His great intellectual powers were de- 
voted to it. He studied and mastered it. It was 
his constant practice to read and re-read it. He 
knew its scope and purpose, its strength and weak- 
ness, its powers and limitations, its checks and 
balances. He was with it at its creation. He had 
stood by its cradle. He had followed its history. 
He realized the struggles and sufferings which pre- 
ceded its birth, and the ruin which was involved in 
its fall. As he wrote those masterpieces of judicial 
reasoning, there seems ever present to his mind the 
beautiful and stately preamble : 

"We, the people of the United States, in order 
to form a more perfect union, establish justice, insure 
domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity, do ordain 
and establish this Constitution for the United States 
of America." 

At the same time his thoughts must have carried 



12 ADDRESSES 

him back to the struggles of the Revolutionary War 
in which he participated, — to Brandywine, German- 
town, and the blood-tracked snows of Valley Forge ; 
to his efforts in the Virginia legislature to secure a 
more efficient Federal government; to his exertions 
in the convention of his own State in behalf of the 
adoption of the Constitution; to his triumphant de- 
fence of Washington's administration in the Virginia 
legislature ; to the insults heaped upon the weakness 
of his country by Talleyrand during his mission to 
France; to his supreme effort at a critical time in 
sustaining the rightful authority of the executive in 
the Congress of 1799, — these and other great events 
in which he took part must have crowded upon his 
memory, animated his whole being, and deepened 
his conviction that the Constitution should be inter- 
preted in the spirit of the preamble, and so secure 
to the people the blessings of liberty and a perpetual 
Union. 

The Constitution was the outcome of mutual con- 
cessions and many compromises. It was offered to 
the people of the several States for ratification as 
the best result attainable. It was regarded by the 
advocates of a strong Union as too weak, and by 
those of a weak Union as too strong. " Nobody 
liked all its provisions, and everybody feared some of 
them." It was adopted by its framers in a spirit of 
harmony and patriotism, and lest their efforts might 



JOHN MARSHALL 13 

prove fruitless. The general sentiment of the Con- 
vention finds expression in the words of the vener- 
able Franklin : " I agree to this Constitution with 
all its faults — if they are such — because I think a 
general government necessary for us. I consent to 
this Constitution because I expect no better, and 
because- I am not sure it is not the best. The 
opinions I have had of its errors I sacrifice to the 
public good." 

The wisdom, ripe experience, lofty patriotism, and 
constructive powers of that remarkable body of men 
who framed the Constitution, and the greatness of 
their work, are universally recognized ; but it is 
equally true that the instrument as it left their 
hands was not a finished and complete work. The 
Constitution is not merely the work of the framers, 
says Mr. Bryce, "but the work of the judges, and 
most of all of one man, the great Chief Justice 
Marshall." It was designed as the framework of a 
comparatively novel form of government, and not as 
a complete code of laws. It was a skeleton, and 
the heart and brain and nerves to make it a living 
organism were in a large degree supplied by Mar- 
shall's construction and interpretation. The powers 
enumerated are brief. They are broad in scope and 
expressed in general terms. Much was necessarily 
left to implication, and much was designedly omit- 
ted. This resulted from the jealousy of the States 



14 ADDRESSES 

and the fear of consolidation or despotism. The 
framers realized that if all the powers essential to 
accomplish the great purposes of the instrument 
had been fully set out it probably never would have 
been ratified. Had the Constitution contained a pro- 
vision that the Supreme Court should be the final 
judge of the fundamental law and of its own juris- 
diction, with the power to nullify an Act of Con- 
gress or a State statute, its adoption would have 
been extremely doubtful. It was admitted at the 
time that its success or failure depended upon its 
construction. This was the great work which fell 
to Marshall, and the saying is true : " He made of 
us a nation by construction." 

The fame of Marshall rests largely upon his judi- 
cial judgments adjusting the relative powers of the 
Federal government and the States, under the Con- 
stitution. The settlement of these rights has always 
been the battle-ground of Federal unions and a men- 
ace to their perpetuity. It was this irrepressible 
conflict which nearly wrecked the Confederation, 
which divided the convention that framed the Con- 
stitution, and constantly imperilled that instrument 
after its adoption. The people under a Federal 
system are always divided into two great political 
parties: those who favor and those who oppose a 
strong central authority ; those who believe such 
authority is indispensable to the maintenance of a 



JOHN MARSHALL 15 

permanent Union and free institutions, and those 
who believe it dangerous to the rights of the States 
and to individual liberty. Marshall referred to this 
when he wrote : " The country was divided into two 
great political parties, the one of which contem- 
plated America as a nation, and labored incessantly 
to invest the Federal head with powers competent 
to the preservation of the Union; the other attached 
itself to the State governments, viewed all the powers 
of Congress with jealousy, and assented reluctantly 
to measures which would enable the head to act 
in any respect independently of the members." 
Since it is the verdict of history that the danger 
to the rights and independence of the States and to 
the freedom of the people from the encroachments 
of the central authority does not exist under a 
Federal system, Marshall showed consummate wis- 
dom and statesmanship in so adjusting by judicial 
construction the relative powers of the Federal gov- 
ernment and the States as to secure the supremacy 
of the Constitution and a permanent Union. 

The new government had been organized only a 
short time when the momentous questions of consti- 
tutional construction endangered its stability and 
existence. 

Did the Constitution establish a sovereign nation, 
or a mere compact between sovereign States ? Is the 
Federal government the final judge of the extent of 



16 ADDRESSES 

the powers granted under the Constitution? Is the 
Supreme Court the sole judge of its own jurisdiction, 
and is it authorized to declare what the supreme law 
is? Did the Constitution establish an efficient and 
permanent government, or is the Constitution, in the 
words of Marshall, only "a solemn mockery," "a 
magnificent structure, indeed, to look at, but totally 
unfit for use " ? Is it, as Pinkney exclaimed in 
McCulloch v. Maryland, " a competent guardian of 
all that is dear to us as a nation," or is it " a mere 
phantom of political power, a pageant of mimic 
sovereignty " ? 

The supremacy of the Constitution was attacked in 
many ways. It was insisted that the Constitution did 
not destroy, as an ultimate question, the sovereignty 
of the States. The Supreme Court is not the judge 
of its own jurisdiction, because that would make it 
sovereign. It might be a convenient agency in the 
government, but it is inconsistent with the nature of 
sovereignty that a sovereign State should submit to 
its judgments. This would make the agent the mas- 
ter, and the Supreme Court would become a menace 
to the States. There exists no supervisory power in 
the Supreme Court to revise the action of a sovereign 
State. It has no right to nullify the legislative act of 
a State. It has no power to declare void an Act of 
Congress, because, under the Constitution, the govern- 
ment is organized into co-ordinate departments of 



JOHN MARSHALL 17 

equal authority. The powers expressly granted to 
Congress and the prohibitions imposed on the States, 
under the Constitution, should receive a strict con- 
struction. The power of Congress to make all neces- 
sary and proper laws to carry into effect the powers 
granted by the Constitution should not be expanded 
by implication to cover other powers not specifically 
enumerated. 

The answers to these and other contentions are 
found in Marshall's decisions, and they are embraced 
in certain fundamental conclusions: The Constitu- 
tion organizes a government complete within itself. 
It establishes a perpetual Union and is the guardian 
of the rights of the people. For these great pur- 
poses the powers conferred by that instrument are 
sufficient. Under the Confederation the central 
authority exerted its action upon sovereign States, 
and they were not compelled to obey its mandates. 
Under the Constitution the Federal powers are ex- 
erted directly upon the people, and they establish 
a government, as distinguished from a mere confed- 
eration, with the usual powers of a government, and 
organized into different departments. The Consti- 
tution does not limit the exercise of Federal power 
to strictly Federal subjects, but goes beyond, and 
by its prohibitions upon the States shields the 
personal rights of the individual. Sovereignty in 
the United States resides in the people. It does 



18 ADDRESSES 

not rest, as in England, with Parliament, or with 
the sovereign ruler, as in many European countries. 
The people have surrendered a portion of their 
sovereignty in the form of a written Constitution, 
and the people only can revoke, alter, or amend 
their own supreme law. The national authority 
is conferred and measured by the Federal Constitu- 
tion, and " prescription cannot aid it, nor precedent 
enlarge it." The Constitution is the supreme law 
of the land, and as such is supreme over all citizens 
and over State authority. The reserve powers of the 
States cannot stay the operation of the supreme law. 

The Union being perpetual, it cannot be dissolved 
by a part of the States or by the people of those 
States. The Federal government is the final judge 
of the nature and extent of its powers under the 
Constitution. The Supreme Court is the judge of 
its own jurisdiction and of what the law is. It 
may nullify an Act of Congress or of a State, and 
it has a supervisory power over the judgments of 
the highest courts of a State where a constitutional 
question is involved. There are also implied powers 
in the Constitution, and if the end be legitimate, the 
means appropriate to that end, when not prohibited, 
are constitutional, if within the spirit and scope of 
that instrument. 

Such were some of the principles of construction 
applied to the Constitution in Marshall's decisions, 



JOHN MARSHALL 19 

which, for lucid and cogent reasoning, power of analy- 
sis, comprehensiveness, and broad generalization, have 
never been surpassed. They cover the great under- 
lying problems of constitutional interpretation. They 
deal with the questions of the powers granted to Con- 
gress, the reserved powers of the States, and the 
restrictions imposed upon the States by the ex- 
pressed and implied powers of Congress. 

Marbury v. Madison was one of Marshall's earlier 
and most famous decisions. It was there held that 
the Constitution is the supreme law, that an Act of 
Congress repugnant thereto is void, and that the 
Supreme Court is the final judge of the fundamental 
law. 

"The question," said the Chief Justice, "whether 
an act repugnant to the Constitution can become the 
law of the land is a question deeply interesting to the 
United States. . . . That the people have an original 
right to establish, for their future government, such 
principles, as in their opinion, shall most conduce to 
their own happiness, is the basis on which the whole 
American fabric has been erected. . . . This original 
and supreme will organizes the government, and as- 
signs to different departments their respective powers. 
. . . The Constitution is either a superior, paramount 
law, unchangeable by ordinary means, or it is on a 
level with ordinary legislative acts, and, like other 
acts, is alterable when the legislature shall please to 



20 ADDRESSES 

alter it. If the former part of the alternative be true, 
then a legislative act contrary to the Constitution is 
not law; if the latter part be true, then written con- 
stitutions are absurd attempts, on the part of the 
people, to limit a power in its own nature illimitable. 

" Certainly all those who have framed written 
constitutions contemplate them as forming the funda- 
mental and paramount law of the nation, and, con- 
sequently, the theory of every such government must 
be, that an act of the legislature repugnant to the 
Constitution is void. 

" This theory is essentially attached to a written 
constitution, and is consequently to be considered by 
this Court as one of the fundamental principles of 
our society. ... It is emphatically the province and 
duty of the judicial department to say what the law 
is. . . . This is of the very essence of judicial duty. 
.. . . Those then who controvert the principle that 
the Constitution is to be considered in court as a 
paramount law are reduced to the necessity of main- 
taining that courts must close their eyes on the Con- 
stitution, and see only the law. This doctrine would 
subvert the very foundation of all written constitu- 
tions. It would declare that an act which, according 
to the principles and theory of our government, is 
entirely void, is yet, in practice, completely obligatory. 
It would declare that, if the legislature shall do what 
is expressly forbidden, such act, notwithstanding the 



JOHN MARSHALL 21 

express prohibition, is in reality effectual. ... It is 
prescribing limits, and declaring that those limits may 
be passed at pleasure. 

" That it thus reduces to nothing what we have 
deemed the greatest improvement on political insti- 
tutions, a written Constitution, would of itself be 
sufficient, in America, where written constitutions 
have been viewed with so much reverence, for reject- 
ing the construction." 

It was by such unanswerable reasoning that Mar- 
shall reached his conclusions. 

In United States v. Peters^ where the question 
arose of the power of a State by statute to disregard 
a judgment of the Supreme Court, the Chief Justice 
declared : 

" If the legislatures of the several States may, at 
will, annul the judgments of the courts of the United 
States, and destroy the rights acquired under those 
judgments, the Constitution itself becomes a solemn 
mockery; and the nation is deprived of the means of 
enforcing its laws by the instrumentality of its own 
tribunals." 

The power of the Supreme Court to review the 
judgment of the highest court of a State, where a 
constitutional question is involved, was affirmed in 
Cohens v. Virginia. In his great opinion in that 
case, the Chief Justice observed: 

11 The questions presented to the Court by the first 



22 ADDRESSES 

two points made at the bar are of great magnitude, 
and may be truly said vitally to affect the Union. 
They exclude the inquiry whether the Constitution 
and laws of the United States have been violated by 
the judgment which the plaintiffs in error seek to re- 
view; and maintain that, admitting such violation, it 
is not in the power of the government to apply a cor- 
rective. They maintain that the nation does not pos- 
sess a department capable of restraining peaceably, 
and by authority of law, any attempts which may be 
made by a part, against the legitimate powers of the 
whole; and that the government is reduced to the 
alternative of submitting to such attempts, or of resist- 
ing them by force. They maintain that the Constitu- 
tion of the United States has provided no tribunal for 
the final construction of itself or of the laws or trea- 
ties of the nation ; but that this power may be exer- 
cised, in the last resort, by the Courts of every State 
in the Union. That the Constitution, laws, and trea- 
ties may receive as many constructions as there are 
States; and that this is not a mischief, or, if a mis- 
chief, is irremediable. ... If such be the Constitu- 
tion, it is the duty of the Court to bow with respectful 
submission to its provisions. If such be not the 
Constitution, it is equally the duty of the Court to 
say so ; and to perform that task which the American 
people have assigned to the judicial department." 
After quoting Article 6 of the Constitution, which 



JOHN MARSHALL 23 

declares that the Constitution, laws, and treaties shall 
be the supreme law of the land, the opinion proceeds : 
" This is the authoritative language of the American 
people ; and, if the gentlemen please, of the American 
States. It marks, with lines too strong to be mis- 
taken, the characteristic distinction between the gov- 
ernment of the Union and those of the States. The 
general government, though limited as to its objects, is 
supreme with respect to those objects. This principle 
is a part of the Constitution ; and if there be any who 
deny its necessity, none can deny its authority. . . . 
A Constitution is framed for ages to come, and is 
designed to approach immortality as nearly as human 
institutions can approach it. Its course cannot always 
be tranquil. It is exposed to storms and tempests; 
and its framers must be unwise statesmen, indeed, 
if they have not provided it, as far as its nature will 
permit, with the means of self-preservation from the 
perils it may be destined to encounter. . . . The 
people made the Constitution, and the people can 
unmake it. It is the creature of their will, and lives 
only by their will. But this supreme and irresistible 
power to make or to unmake, resides only in the 
whole body of the people ; not in any subdivision of 
them. The attempt of any of the parts to exercise 
it is usurpation, and ought to be repelled by those 
to whom the people have delegated their power of 
repelling it." 



24 ADDRESSES 

This opinion, which is tinged with patriotic emo- 
tion, points out the primary and elemental principles 
on which the Constitution rests. 

McCulloch v. Maryland is a notable decision. The 
case involved the power of the government to estab- 
lish a bank, as an implied power under Article i, 
Section 8, giving Congress power to make all neces- 
sary and proper laws for carrying into execution 
the powers vested by the Constitution in Congress 
or in the government. The power was affirmed by 
the Chief Justice. "We admit," he said, "and all 
must admit, that the powers of the government are 
limited, and that its limits are not to be transcended. 
But we think the sound construction of the Consti- 
tution must allow to the national legislature that 
discretion, with respect to the means by which the 
powers it confers are to be carried into execution, 
which will enable that body to perform the high 
duties assigned to it, in the manner most beneficial to 
the people. Let the end be legitimate, let it be within 
the scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, 
which are not prohibited, but consist with the letter 
and spirit of the Constitution, are constitutional." 

Another great question decided in that case related 
to the power of a State to tax a bank established by 
the government. On this point the Chief Justice 
declared : 



JOHN MARSHALL 25 

" That the power to tax involves the power to 
destroy; that the power to destroy may defeat and 
render useless the power to create ; that there is a 
plain repugnance, in conferring on one government 
a power to control the constitutional measures of 
another, which other, with respect to those very 
measures, is declared to be supreme over that which 
exerts the control, are propositions not to be denied. 
. . . If the States may tax one instrument, employed 
by the government in the execution of its powers, 
they may tax any and every other instrument." 

The necessity of uniform regulations of commerce 
was the most powerful cause which led to the adop- 
tion of the Constitution. The construction of the 
commerce clause in that instrument came under con- 
sideration in Gibbons v. Ogden, The State of New 
York had granted to Fulton and Livingston the 
exclusive right to navigate all the waters of New 
York with vessels propelled by steam. This right 
had been assigned to Ogden, the original plaintiff. 
The highest court of New York had restrained the 
original defendant, Gibbons, from navigating the 
Hudson River with steamboats licensed under an 
Act of Congress. The State law was held void. 
" Commerce," said the Chief Justice, " undoubtedly, is 
traffic, but it is something more: it is intercourse. 
. . . All America understands, and has uniformly 
understood, the word ' commerce ' to comprehend 



26 ADDRESSES 

navigation. . . . The power over commerce, includ- 
ing navigation, was one of the primary objects for 
which the people of America adopted their govern- 
ment, and must have been contemplated in forming 
it. . . . This power, like all others vested in Con- 
gress, is complete in itself, may be exercised to its 
utmost extent, and acknowledges no limitations other 
than are prescribed in the Constitution. . . . The 
power of Congress, then, comprehends navigation 
within the limits of every State in the Union ; so far 
as that navigation may be, in any manner, connected 
with * commerce with foreign nations, or among the 
several States, or with the Indian tribes.' . . . 

" Powerful and ingenious minds, taking, as pos- 
tulates, that the powers expressly granted to the 
government of the Union are to be contracted by 
construction into the narrowest possible compass, 
and that the original powers of the States are re- 
tained, if any possible construction will retain them, 
may, by a course of well digested but refined and 
metaphysical reasoning, founded on these premises, 
explain away the Constitution of our country, and 
leave it a magnificent structure, indeed, to look at, 
but totally unfit for use." 

In Canter v. The American Insurance Company, 
where the validity and effect of the treaty of 1 8 1 9, by 
which Spain ceded Florida to the United States, was 
before the Court, the Chief Justice said: "The Con- 



JOHN MARSHALL 27 

stitution confers absolutely on the government of 
the Union the powers of making war and of making 
treaties ; consequently, that government possesses the 
power of acquiring territory, either by conquest or by 
treaty." 

Marshall was not in favor of a narrow construction 
of the Constitution, nor of an enlarged construction 
beyond the natural meaning of the words. Upon this 
general question he observed, in Gibbons v. Ogden : 

"What do the gentlemen mean by a strict con- 
struction ? If they contend only against that enlarged 
construction which would extend words beyond their 
natural and obvious import, we might question the 
application of the term, but should not controvert the 
principle. If they contend for that narrow construc- 
tion which, in support of some theory not to be found 
in the Constitution, would deny to the government 
those powers which the words of the grant, as usually 
understood, import, and which are consistent with the 
general views and objects of the instrument ; for that 
narrow construction which would cripple the govern- 
ment, and render it unequal to the objects for which 
it is declared to be instituted, and to which the powers 
given, as fairly understood, render it competent ; then 
we cannot perceive the propriety of this strict con- 
struction, nor adopt it as the rule by which the Con- 
stitution is to be expounded. . . . The enlightened 
patriots who framed our Constitution, and the people 



28 ADDRESSES 

who adopted it, must be understood to have employed 
words in their natural sense, and to have intended 
what they have said. If, from the imperfection of 
human language, there should be serious doubts re- 
specting the extent of any given power, it is a well 
settled rule, that the objects for which it was given, 
especially when those objects are expressed in the 
instrument itself, should have great influence in the 
construction." 

This occasion will not permit a more extended 
reference to Marshall's opinions. It is sufficient to 
observe that they constitute in a large measure the 
judicial structure of the nation. 

When we speak of the Supreme Court decisions on 
constitutional questions as those of Marshall, we are 
doing no injustice to the other members of the Court. 
His master mind directed and governed that tribunal 
on this subject. This was the verdict of his contem- 
poraries. In dedicating his "Commentaries on the 
Constitution" to Marshall, Judge Story wrote: " Other 
judges have attained an elevated reputation by similar 
labors in a single department of jurisprudence. But 
in one department (it need scarcely be said that I 
allude to that of constitutiona 1 law) the common 
consent of your countrymen has admitted you stand 
without a rival. Posterity will surely confirm by its 
deliberate award what the present age has approved 
as an act of undisputed justice." 



JOHN MARSHALL 29 

Of the six decisions involving questions of consti- 
tutional law from the organization of the Court in 
1790 to Marshall's appointment in 1801, only two 
were of grave importance. From 1801 to 1835, 
covering the period Marshall was Chief Justice, 
sixty-two decisions on constitutional questions were 
given, in thirty-six of which the opinion of the 
Court was written by him. Although this was his 
most important work, it comprises only a fraction 
of his judicial labors. In the thirty volumes of 
reports extending from the first of Cranch to and 
including the ninth of Peters, there are eleven 
hundred and six cases in which opinions were 
filed, and five hundred and nineteen of these were 
delivered by Marshall. These opinions cover ques- 
tions on nearly every important branch of juris- 
prudence. The case of Ogden v. Saunders was the 
only case raising a constitutional question where 
the majority of the Court differed from the Chief 
Justice. 

In the department of constitutional law, the field 
was new. There were few precedents, because the 
construction and declaration of the supreme law by 
a court, under a written constitution, was unknown. 
Marshall's only light was the inward light of reason. 
He had "no guides but the primal principles of 
truth and justice." He does not cite a single 
decision on the great constitutional questions deter- 



30 ADDRESSES 

mined in Marbury v. Madison, Cohens v. Virginia^ 
St urges v. Crowninshield, McCulloch v. Maryland, 
and Dartmouth College v. Woodward. Judge Story 
said : " When I examine a question, I go from head- 
land to headland, from case to case; Marshall has 
a compass, puts out to sea, and goes directly to 
his result." Tradition records (we will not say 
truthfully) that when Marshall had finished reading 
his great opinions, he would sometimes observe : 
"These seem to me to be the conclusions to which 
we are conducted by the reason and spirit of the 
law. Brother Story will furnish the authorities." 

Marshall's decisions are demonstrations founded 
upon pure reason. They are chains of compact rea- 
soning leading to inevitable conclusions. They are 
almost devoid of illustration or analogy. They show 
profound meditation and deep penetration. They 
grapple with great underlying principles, and exclude 
extraneous circumstances. In the words of a con- 
temporary : " When we regard their originality, their 
depth, their clearness, and their adamantine strength, 
we look upon them as the highest efforts of the 
human mind." Webster declared : " When Judge 
Marshall says, 'It is admitted,' — Sir, I am preparing 
for a bomb to burst over my head and demolish all 
my points." After hearing Marshall deliver several 
opinions, William Pinkney exclaimed : " He was born 
to be the Chief Justice of any country in which he 




So/*,* uy/if/m:/y ^.irs^pii. MaM-MSe*. 



JOHN MARSHALL 31 

lived. " And John Adams said that his gift of John 
Marshall to the United States was the proudest act 
of his life. 

When Marshall, at the age of forty-five, was 
appointed Chief Justice, he had been engaged in 
the leading events of his time. His previous life 
was a training and preparation for the high office 
he then assumed. He was already distinguished as a 
patriot, lawyer, legislator, statesman, and diplomatist; 
and, soon after he became Chief Justice, his " Life 
of Washington " was published. 

Born on September 24, 1755, in Germantown, 
Fauquier County, Virginia, his early youth was 
passed in a sparsely settled country thirty miles 
west, near the Blue Ridge Mountains. His father 
was a friend and companion of Washington; a 
colonel in the Revolutionary Army; a man of 
marked courage and energy, and well read in the 
English classics; and he was deeply interested in 
the education of his children. 

In his youth Marshall was fond of out-door 
sports. He loved nature, and poetic longings filled 
his soul. He early showed a taste for literature, 
which he retained throughout his life. Two years' 
instruction in Latin comprised his education, except 
what was obtained at home. 

When the storm of the Revolutionary War broke 
upon the Colonies, the youthful spirit of Marshall 



32 ADDRESSES 

burned with patriotic zeal. Abandoning his studies, 
he formed a company. He was made lieutenant 
and afterwards captain; and he remained with the 
army, except for a short period, until the end of 
the war. " He fought," says a recent writer, " at 
the battles of Brandywine, Germantown, and Mon- 
mouth. He was with Mad Anthony Wayne at 
Stony Point. He was with Lighthorse Harry Lee 
in the brilliant action at Paulus Hook. He suffered 
hardships with the patriot army in the winter encamp- 
ment upon the impregnable heights of Morristown. 
He was with his great commander during the dreary 
midnight of the Revolution at Valley Forge. In 
all his military service he was steadfast, capable, and 
valiant." 

At the age of twenty-five, after attending a course 
of lectures by Chancellor Wythe at William and 
Mary College, Marshall was admitted to the bar, and 
rose rapidly to eminence. The same qualities which 
afterwards distinguished him as a judge marked his 
career as a lawyer. Calmness, moderation, penetra- 
tion, and mental grasp characterized his forensic ar- 
guments. In describing Marshall's powers, William 
Wirt declared that he possessed " one original and 
almost supernatural faculty, — the faculty of devel- 
oping a subject by a single glance of his mind, and 
detecting at once the very point on which every 
controversy depends. No matter what the question, 



JOHN MARSHALL 33 

though ten times more knotty than the gnarled oak, 
the lightning of heaven is not more rapid nor more 
resistless than his astonishing penetration." It was 
not long before he ranked first among the leaders 
of the bar in his native State. The two volumes 
by Washington of the cases adjudged in the Vir- 
ginia Court of Appeals disclose his name as counsel 
in a large majority of the cases reported. 

His professional reputation became national in 
the celebrated case of Ware v. Hyltbn, known as 
the English Debt case, which raised the question 
whether, under the treaty of peace of 1783, British 
creditors could recover debts sequestrated during 
the Revolutionary War by act of the Virginia leg- 
islature. The honor of the State and the fortunes 
of many of its citizens were involved in the issue. 
The case was argued before the Supreme Court in 
Philadelphia in the winter of 1796. There were 
engaged in it the most learned and eloquent mem- 
bers of the Virginia bar, which at that time was said 
to rank first in the country. Marshall appeared as 
leading counsel for the defendants; and, although 
on the losing side of the case, his masterly argu- 
ment excited the admiration of the Court and the 
bar. 

Speaking of Marshall's effort, Wirt says: " Marshall 
spoke, as he always does, to the judgment merely, 
and for the simple purpose of convincing. Marshall 

3 



34 ADDRESSES 

was justly pronounced one of the greatest men of 
the country. He was followed by crowds, looked 
upon and courted with every evidence of admiration 
and respect for the great powers of his mind. Mar- 
shall's maxim seems always to have been, * Aim 
exclusively at strength.'" 

Marshall's career as a legislator was a school and 
training for his great work of expounding the Consti- 
tution. He was a member of the Virginia legislature 
for several years following the close of the Revolution- 
ary War and before the adoption of the Constitution 
in 1789. Questions of the highest importance and 
statesmanship occupied the attention of the legisla- 
ture during this period. The Articles of Confedera- 
tion had proved entirely inadequate for the purposes 
of an efficient government. The requisitions of Con- 
gress were ignored, and the disruption of the Confede- 
ration was imminent. On all the important political 
questions then pending before the legislature, Mar- 
shall stood with Madison in pleading for a stronger 
and more effective Federal union. The bitter and 
cruel experience of the Colonies during these years 
made a deep impression on his mind, which he could 
not afterwards cast aside when called upon to deter- 
mine the grave questions affecting the supremacy and 
efficiency of the new Constitution. 

Marshall was a delegate to the Virginia Conven- 
tion of 1788, to which was submitted the question of 



JOHN MARSHALL 35 

the ratification of the Constitution. The Convention 
was composed of the most eloquent and illustrious 
body of men ever gathered together in the State. 
Marshall and Madison, by their supreme exertions, 
were hardly able to stem the fiery eloquence of Pat- 
rick Henry and the powerful arguments of Grayson 
and George Mason in opposition. In his forcible 
speech of June 10, 1788, in reply to Patrick Henry, 
Marshall answered the various objections urged 
against the Constitution. He begins with a calm- 
ness, moderation, and judicial temper which mark the 
entire speech. " I conceive that the object of the 
discussion now before us is whether democracy or 
despotism be most eligible. I am sure that those 
who framed the system submitted to our investigation, 
and those who now support it, intend the establish- 
ment and security of the former. The supporters of 
the Constitution claim the title of being firm friends 
of the liberty and the rights of mankind. They say 
that they consider it as the best means of protecting 
liberty. We, sir, idolize democracy. Those who op- 
pose it have bestowed eulogiums on monarchy. We 
prefer this system to any monarchy, because we are 
convinced that it has a greater tendency to secure our 
liberty and promote our happiness. We admire it, 
because we think it a well-regulated democracy." 

The acts of Washington's administration after 
the new government was organized were bitterly 



36 ADDRESSES 

denounced. The ratification of Jay's Treaty with 
England in 1795 excited intense opposition. Con- 
stitutional objections to the treaty were raised and 
supported by powerful arguments. The memorable 
speech of Marshall in the Virginia legislature, in de- 
fence of the constitutional power of the executive to 
negotiate commercial treaties, raised him into national 
fame as a statesman, and placed him among the fore- 
most leaders of the Federal Party. 

As an indication of the popular feeling of the time, 
it may be noticed that, upon the presentation in the 
legislature of a resolution expressing confidence in 
the " virtue, patriotism, and wisdom " of Washington, 
a motion to strike out the word " wisdom " was de- 
feated by a bare majority. " Will it be believed," 
exclaimed Marshall, " that the word was retained by a 
very small majority? A very small majority in the 
legislature of Virginia acknowledged the wisdom of 
General Washington." 

It was about this time that Washington tendered 
Marshall the office of Attorney-General and the mis- 
sion to France, both of which he declined. 

In consequence of Jay's Treaty with England, our 
relations with the French Republic had reached a 
critical stage; and, from a Sense of patriotic duty, 
Marshall finally accepted the appointment of Envoy 
to France in conjunction with Pinckney and Gerry. 
During this trying and humiliating mission the letters 



JOHN MARSHALL 37 

addressed to Talleyrand defining and defending our 
country's position have always been attributed to 
Marshall's pen. They aroused the warmest praise, 
and on his return in 1798 he received ovations in 
New York and Philadelphia. 

Upon resuming the practice of his profession in 
Virginia, at the earnest solicitation of Washington, 
who was filled with dark forebodings as to the future 
of the country, Marshall became a candidate for Con- 
gress, after declining a position on the Supreme Court 
tendered him by President Adams. He was elected 
in the spring of 1799. Hardly had he taken his seat 
a few months later, when he was called upon to an- 
nounce the death of Washington. " Those who were 
present on the occasion," says Binney, " can never 
forget the suppressed voice and deep emotion with 
which he introduced the subject on the following day ; 
or the thrill which pervaded the House at the con- 
cluding resolution." 

On questions which related to the Constitution, 
Marshall was the acknowledged leader of the House. 
The most notable debate in this Congress was upon 
the resolutions of Edward Livingston, censuring the 
President for his conduct in the extradition of Jona- 
than Robbins. This executive interference was vio- 
lently attacked as an unconstitutional exercise of 
power. The speech of Marshall in reply to Living- 
ston, in the language of Judge Story, " settled then 



38 ADDRESSES 

and forever the points of national law upon which the 
controversy hinged," and " is one of the most consum- 
mate juridical arguments which was ever pronounced 
in the halls of legislation." 

During this term of Congress Marshall was ten- 
dered the office of Secretary of War, which he de- 
clined ; and subsequently, the office of Secretary of 
State, which he accepted. The latter position brought 
before him our relations with foreign countries, and 
especially with England. His State papers upon the 
various questions arising out of the execution of the 
British Treaty, which had threatened to interrupt 
the peaceful relations of the two countries, were 
strong, dignified, and diplomatic. 

While serving as Secretary of State he was nomi- 
nated by President Adams for Chief Justice ; his 
nomination was unanimously confirmed by the Sen- 
ate ; and he was commissioned January 31, 1801. 
He took his seat on February 4, to enter upon a 
career the most remarkable in judicial annals. 

Marshall possessed intellectual powers of the high- 
est order. The commanding features of his mind 
were calmness, penetration, and profound wisdom. 
In judicial acquirements he was not the equal of some 
of his contemporaries. He was not what is termed 
a learned man, and he had none of the arts of an 
advocate. He relied upon the original powers of his 
mind, and not upon knowledge gained from others. 



JOHN MARSHALL 39 

He worked out the great problems of constitutional 
jurisprudence as Newton worked out the great prob- 
lems of natural science. He mastered new subjects 
by his powers of analysis and intuitive perception 
of the truth. " He seized, as it were by intuition," 
says Judge Story, "the very spirit of juridical doc- 
trines, though cased up in the armor of centuries ; 
and he discussed authorities, as if the very minds 
of the judges themselves stood disembodied before 
him." 

Marshall's moral nature was in harmony with his 
intellectual. His affections were strong and pure. 
His character was spotless. It is said he never had 
an enemy. The affectionate regard which bound 
others to him in his youth, and during his long 
public career, became, towards the closing days of his 
life, an exalted veneration. His nature was marked 
by deep sensibility and tenderness. Speaking of his 
domestic virtues, Judge Story, in his beautiful eulogy, 
declares : " After all, whatever may be his fame in 
the eyes of the world, that which in a just sense was 
his highest glory was the purity, affectionateness, lib- 
erality, and devotedness of his domestic life. Home, 
home, was the scene of his real triumphs." 

Though distinguished for moderation and good 
temper, he was immovable in his performance of 
judicial duty. The trial of Aaron Burr is an illustra- 
tion of his firmness and impartiality under the most 



40 ADDRESSES 

trying circumstances. The country was convinced 
of Burrs guilt, and Marshall's rulings were severely 
censured. " Marshall," exclaimed Wirt, " has stepped 
in between Burr and death." But the great Chief 
Justice stood unmoved while the storm of passion 
and prejudice raged about him. The English law 
of treason, he declared, had not been imported into 
the Constitution. Treason under the Constitution 
consists in some overt act, and it is not treason 
for the subject to "imagine the death of the King." 
Marshall's deepest feelings were aroused in this 
memorable trial. Listen to these words : " That 
this Court dares not usurp power is most true. That 
this Court dares not shrink from its duty is not less 
true. No man is desirous of placing himself in a 
disagreeable situation. No man is desirous of be- 
coming the peculiar subject of calumny. No man, 
might he let the bitter cup pass from him without 
self-reproach, would drain it to the bottom. But if 
he has no choice in the case; if there is no alterna- 
tive presented to him but a dereliction of duty or 
the opprobrium of those who are denominated the 
world, he merits the contempt as well as the indig- 
nation of his country who can hesitate which to 
embrace." 

When the question was put to Wirt after the 
trial, " Why did you not tell Judge Marshall that 
the people of America demanded a conviction ? " 



JOHN MARSHALL 41 

" Tell him that ! " was the reply. " I would as soon 
have gone to Herschel, and told him that the people 
of America insisted that the moon had horns as a 
reason why he should draw her with them." 

Marshall's personal traits were winning. Nothing 
seemed to disturb his temper or equanimity. His 
manners on the bench were a model of dignity, sim- 
plicity, and courtesy. He heard the arguments of 
counsel with unsurpassed patience and strict atten- 
tion. " The gravity of the judge was tempered with 
the courtesy of the gentleman." 

An English traveller gives us a touching picture 
of the Chief Justice during his last days : " The 
Judge is a tall, venerable man, about eighty years 
of age, his hair tied in a queue according to olden 
custom ; and with a countenance indicating that sim- 
plicity of mind and benignity which so eminently 
distinguish his character. His house is small, and 
more humble in appearance than those of the aver- 
age successful lawyers or merchants. I called three 
times upon him. There was no bell to the door. 
Once I turned the handle of it and walked in unan- 
nounced. On the other two occasions he had seen 
me coming and had lifted the latch and received me 
at the door, although he was at the time suffering 
from some very severe contusions received in the 
stage while travelling on the road from Fredericks- 
burg to Richmond. I verily believe there is not a 



42 ADDRESSES 

particle of vanity in his composition." Such was 
the man, simple, kindly, great — the noble attributes 
of true manhood. 

Perhaps no tribute after his death is more beau- 
tiful than is expressed in the words : " The fame of 
the Chief Justice has justified the wisdom of the 
Constitution, and reconciled the jealousy of freedom 
to the independence of the judiciary." 

The affection and veneration of the bar are feel- 
ingly shown by the resolutions adopted by the Cir- 
cuit Court of Virginia, which declare that he had 
presided for thirty-five years "with such modesty 
that he seemed wholly unconscious of his own 
gigantic powers; with such equanimity, such benig- 
nity of temper, such amenity of manners, that not 
only none of the judges who sat with him on the 
bench, but no member of the bar, no officer of the 
court, no juror, no witness, no suitor, in a single 
instance, ever found or imagined, in anything said 
or done, or omitted by him, the slightest cause of 
offence." 

The providence of God has been made manifest 
to this nation " in raising up from time to time men 
of pre-eminent goodness and wisdom," — Washing- 
ton, Lincoln, Marshall, each fitted for his special 
work. The name and services of Marshall are less 
known because what he did lies more hidden from 
the eyes of men. But it only requires examination 



JOHN MARSHALL 43 

and reflection to reveal the incalculable value of his 
labors, and his title to the gratitude of his country. 
In the beautiful emblem of the nation which hangs 
from these historic walls it was by his hand the 
silken threads were woven into the folds in which 
are set and held forever those shining stars. 

To comprehend Marshall's work we must stand 
upon the mountain top and survey the nation ; its 
cluster of proud States stretching from ocean to 
ocean; its groups of islands encircling the sea; its 
strings of great cities ; its countless towns and vil- 
lages, farms and homes; its temples of worship on 
every hillside, whose spires are the first to greet the 
morning sun at his coming; its schools and univer- 
sities ; its hospitals and charities; its commerce and 
arts ; its science and invention ; its industries and 
wealth, — the whole picture of national life which 
is spread before our vision. 

Behold the change! We are no longer a feeble 
confederation of colonies fringing the Atlantic coast; 
but a mighty composite Republic standing in the 
front rank of nations, beckoning the poor and heavy- 
burdened of other climes to this home of material 
comfort, civilization, and orderly liberty; and march- 
ing to the financial and commercial supremacy of the 
world. Our political system is no longer threatened 
by discordant or belligerent States, but we behold 
a loyal, united, and enduring Union, — the highest 



44 ADDRESSES 

type of government, a Federal Commonwealth in 
its perfect form. We see no longer a weak and 
struggling national spirit, but the throb of seventy 
million patriotic hearts as the Maine sinks beneath 
the waters in Havana's harbor. The symbol of our 
country's power is no longer the frigate Constitu- 
tion, or the wooden ships of Perry built in a night 
to cross an inland sea, but the majestic and invin- 
cible Oregon, traversing two oceans from Pacific's 
Golden Gate to battle for the oppressed of other 
lands and the nation's honor. 

As we enter the gateway of a new century with 
hearts overflowing with gratitude to Almighty God 
for our unnumbered national blessings, and await- 
ing with high anticipation and conscious strength 
the grander destiny of the coming years, we may 
well pause to lay our wreath of laurel on the un- 
crowned head of the great jurist who set deep and 
immovable the constitutional pillars on which the 
nation rests. 



PROTECTION OF THE PRESIDENT 45 



THE PROTECTION OF THE PRESIDENT 
OF THE UNITED STATES 

Address delivered before the New Hampshire Bar Association at 
their Annual Meeting at Concord on March 3, 1902. 

Mr. President and Members of the 

New Hampshire Bar Association : 

A SOLEMN and imperative duty has fallen 
upon the country: the protection of the 
President of the United States. The sub- 
ject is of the gravest public concern, and of peculiar 
interest to our profession. 

It is a startling commentary on our vaunted intel- 
ligence, progress, and security, that we are unable 
to guard the life of one individual in this country, 
and he the most honored and best beloved. With 
millions of men, as our recent experience revealed, 
ready to rise at a moments warning in defence of 
the Republic ; with boundless resources ; with armies 
and navies and all the appliances of modern warfare 
at our command ; fearing not, in our conscious 
strength, the attack of any foreign foe ; standing 
proud, erect, and invincible before the world, — we 
still see our Chief Magistrate shot down with the 
same ease that a highwayman would shoot down a 



46 ADDRESSES 

defenceless traveller on the public way. Something 
must be wrong somewhere. 

There is no conceivable crime so atrocious as the 
causeless murder of the chosen ruler of a free people. 
Such crimes rise infinitely higher than crimes against 
the individual. They are crimes against humanity, 
civilization, and the country's life; against society, 
law, and liberty. They are a blot upon free insti- 
tutions, a stain upon the flag. They undermine the 
happiness and well-being of the people. They lower 
our standing and character in the opinion of man- 
kind. They are blows aimed at the Presidency and 
self-government; at the town-meeting, the State, and 
the nation; at all our institutions, and everything 
which finds expression in the words " Our Country." 

Has our fancied security indeed proved a dream 
and a delusion ? Has our boasted liberty become 
the liberty of assassination? Is this the end of the 
struggles, the sacrifices, the aspirations of the people 
for self-government? Is this the consummation of 
the long, weary, and bloody march of mankind to 
this fair land of freedom? 

The record is appalling. In thirty-seven years 
three Presidents have been assassinated, an average 
of one assassination every twelve years. The world 
will surely hesitate to imitate our example of a true 
democracy if this record be long continued. The 
history of Europe for a thousand years furnishes 



PROTECTION OF THE PRESIDENT 47 

no parallel. To find one we must go back to the 
military usurpers of ancient Rome, 

During these comparatively few years the assassi- 
nations of our Chief Magistrates have equalled, if not 
exceeded, those of the rulers of England since the 
Norman conquest in 1066, and of France during 
the last ten centuries. No king of England has been 
assassinated for more than four hundred years, and 
but one ruler of France in nearly three centuries. 

During the life of the Federal government, a 
period of one hundred and thirteen years, no ruler 
of England, Germany, or Spain has suffered death 
by violence ; France, Italy, and Austria have each 
escaped with a single victim, while Russia records 
but two instances. 

This comparison becomes the more amazing when 
we consider that tyrannicide, regicide, and religious 
fanaticism have been among the principal causes 
leading to the assassination of European rulers, and 
that these causes have not existed here. Nor can this 
striking contrast be explained by reference to latter- 
day anarchism, for at most only one of the four 
attempts upon the lives of our Presidents can be 
traced to that cause. 

This country stands arraigned before the judgment- 
seat of civilized nations to account, if possible, for 
these tragedies, and to atone for them by the adoption 
of the best remedial measures which can be devised. 



48 ADDRESSES 

We know that complete immunity from this form of 
assassination is impossible, but the risk should be 
reduced to a minimum. There must at least be an 
abatement in the frequency of these national crimes. 

We can no longer plead in justification our supreme 
faith in a free people and democratic institutions as 
a shield against such attacks ; nor our belief that ho 
one could be found to strike down the citizen chosen 
by the will of the people to administer their own laws 
by acting for a short time as their Chief Magistrate. 
Nor can we plead that we could comprehend the 
assassination of the Czar of Russia because he was 
the State, or the assassination of the King of Italy 
because he was born king, or the assassination of any 
ruler where justice was denied the people and irrep- 
arable political and social grievances existed ; but that 
it was impossible for us to imagine how any human 
being should wish to murder Lincoln or Garfield or 
McKinley, who sprang from the people, whose lives 
were consecrated to their happiness and well-being, 
and who died " holy victims sacrificed on the altar of 
liberty." We must now acknowledge our experience 
has shown that the freest government, administered 
by the most exalted characters, is not exempt from 
this form of assassination. 

Nor can we insist upon the violence of party spirit 
inherent in a democracy as the cause, and cite as ex- 
amples Athens, Venice, and Florence, because party 



PROTECTION OF THE PRESIDENT 49 

struggles will not account for the frequency of these 
catastrophes; and, further, our political institutions 
and social conditions are quite unlike those of any 
ancient or mediaeval republic. 

Nor will it do to urge too strongly in defence the 
inadequacy of our laws, either punitive or preventive, 
because it appears that the would-be assassin of Presi- 
dent Jackson was speedily tried by a jury and found 
to be insane; that the assassin of President Lincoln 
was quickly traced to his hiding-place and shot to 
death while resisting arrest ; that the assassin of Pres- 
ident Garfield was tried, convicted, and executed; 
and that the murderer of President McKinley met 
quick retributive justice under the law. So likewise, 
with respect to preventive legislation, it may be said 
that a volume of such laws would have had no deter- 
rent effect upon the insane Lawrence or the con- 
spirator Booth or the unbalanced Guiteau; and if the 
recent diagnosis of Czolgosz's condition be true, it is 
doubtful to what extent any laws would have operated 
to prevent this attempt. 

We may perhaps as a people be forgiven for the 
murder of Lincoln, — the offspring of the violent pas- 
sions born of civil war, — and we may find an histori- 
cal parallel in the murder of William of Orange or 
Henry IV of France; but the recorded annals of 
mankind will be searched in vain to find a parallel 
to the murders of Garfield and McKinley. In the 



50 ADDRESSES 

unavoidable dangers incident to the high office of 
President, it would not have been surprising if one 
of our Chief Magistrates had met a violent death ; but 
the gravity of the charge against this country, and 
the apparently inexplicable thing, is the frequency 
of the crime under existing circumstances. It would 
not have seemed extraordinary if one of our Presi- 
dents had died by the hand of a conspirator, an insane 
person, or an anarchist ; but what is astounding, and 
seemingly unaccountable, is that Lincoln, Garfield, 
and McKinley should all have been assassinated within 
forty years. 

This phenomenon must be accounted for in some 
way. There must be a cause lying hidden some- 
where. Let us contrast the successful and unsuccess- 
ful attempts upon the lives of our Chief Magistrates 
with the successful and unsuccessful attempts upon 
the lives of foreign rulers, and see if some light is 
not thrown upon the subject. For if it should turn 
out to be true that the attempts to kill our Chief Mag- 
istrates have been far less frequent than the attempts 
to kill the rulers of other civilized nations, and that our 
trouble is owing to the success of the attempts and 
not to their number, we are on the road to the dis- 
covery of the true cause of the anomalous situation 
of this country respecting these political crimes. 

From 1789 to 1902 there have been four attempts 
to assassinate the Presidents of the United States, as 



PROTECTION OF THE PRESIDENT 51 

compared with ten attempts to assassinate the rulers 
of England (exclusive of four minor assaults), seven- 
teen attempts to assassinate the rulers of France, 
ten attempts to assassinate the rulers of Russia; 
and since 1850 five attempts to assassinate the 
rulers of Germany (Prussia), six attempts to assas- 
sinate the rulers of Spain, four attempts to assassi- 
nate the rulers of Italy, and three attempts to 
assassinate the rulers of Austria. This list is with- 
out doubt incomplete. Moreover it does not include 
many plots and conspiracies which were discovered 
before consummation. The comparatively large num- 
ber of recorded attempts in England and France may 
be due to the effort in some countries to suppress 
the publication of such events. 

This comparison discloses this astounding result : 
Of the four attempts upon the lives of the Presi- 
dents, three have been successful, or seventy-five 
per cent; of the ten attempts upon the lives of 
English rulers, none have been successful; of the 
seventeen attempts upon the lives of the rulers of 
France, only one has been successful, or about six 
per cent ; of the ten attempts upon the lives of 
the rulers of Russia, but two have been successful, 
or twenty per cent. And since 1850, of the five 
attempts upon the lives of the rulers of Germany 
(Prussia), none have been successful ; of the six 
attempts upon the lives of the rulers of Spain, none 



52 ADDRESSES 

have been successful ; of the four attempts upon the 
lives of the rulers of Italy, only one has been suc- 
cessful ; and of the three attempts upon the lives of 
the rulers of Austria, but one has been successful. 

Limiting this comparison to the attempts since 
i860, we find three attempts upon the lives of the 
Presidents, as compared with two attempts upon the 
lives of the rulers of England; five attempts upon 
the lives of the rulers of France ; eight attempts 
upon the lives of the rulers of Russia ; three attempts 
upon the lives of the rulers of Germany; four at- 
tempts upon the lives of the rulers of Spain; three 
attempts upon the lives of the rulers of Italy; and 
two attempts upon the lives of the rulers of Austria. 
The comparatively small number of attempts in 
England during these years may be in part due to 
the almost absolute seclusion of Queen Victoria after 
the death of Prince Albert. 

This comparison gives the following result: Since 
i860 all of the attempts upon the lives of the Presi- 
dents of the United States were successful ; the two 
attempts upon the lives of English rulers were un- 
successful ; of the five attempts upon the lives of 
the rulers of France, only one was successful ; of the 
three attempts upon the lives of the rulers of Ger- 
many, none were successful; of the eight attempts 
upon the lives of the rulers of Russia, but one was 
successful ; of the three attempts upon the lives of 



PROTECTION OF THE PRESIDENT 53 

the rulers of Italy only one was successful ; of the 
four attempts upon the lives of the rulers of Spain, 
none were successful ; and of the two attempts upon 
the lives of the rulers of Austria, but one was 
successful. 

Limiting this comparison to the attempts by 
anarchists, in which the country is now deeply con- 
cerned, we find in the past forty years only one such 
attempt upon the life of the President, as compared 
with three attempts upon the rulers of France, six 
attempts upon the rulers of Russia, one attempt upon 
the rulers of Germany, two attempts upon the rulers 
of Italy, and one attempt upon the rulers of Austria. 
The result of these attempts was as follows : The 
single attempt in this country was successful ; the sin- 
gle attempt in Austria was also successful ; the single 
attempt in Germany was unsuccessful ; of the three 
attempts in France, but one was successful ; of the 
six attempts in Russia, only one was successful ; and 
of the two attempts in Italy, but one was successful. 

To summarize: Of the four attempts to assassi- 
nate the Presidents of the United States since the 
foundation of the government in 1789, three have 
been successful, or seventy-five per cent ; of the fifty- 
five attempts to assassinate the rulers of Europe in 
the countries above mentioned since 1789, only five 
have been successful, or about nine per cent. Since 
i860, of the three attempts to assassinate the Presi- 



54 ADDRESSES 

dents of the United States, three have been success- 
ful, or one hundred per cent; of the twenty-seven 
attempts to assassinate the rulers of Europe in the 
countries above mentioned, only four have been suc- 
cessful, or fifteen per cent. The single attempt by 
anarchists to assassinate the President of the United 
States has been successful ; and of the thirteen 
attempts by anarchists to assassinate the rulers of 
the European countries above mentioned, only four 
have been successful, or thirty per cent. 

In this comparison between the attempts in this 
country and in European countries, it should be 
remembered that the personal protection afforded 
European rulers undoubtedly prevented many attacks 
which otherwise would have occurred. The circum- 
stance that a ruler is openly guarded has a marked 
deterrent effect upon assaults of this nature. It is 
safe, perhaps, to say that the life of no one of the 
European rulers I have mentioned, excepting possi- 
bly that of England, under the existing political 
and social conditions in his country, would be safe 
for a single year if he exposed himself to the same 
extent as the President of the United States. 

This wide difference between the success and 
failure of the attempts upon the lives of the rulers 
in this country and in Europe , can be accounted 
for only upon the theory of the absence of safe- 
guards surrounding the President, and his consequent 



PROTECTION OF THE PRESIDENT 55 

exposure to attack. Had the would-be assassins of 
England's rulers since Washington took his seat ac- 
complished their object with the same ease as in this 
country, in all human probability the number of vic- 
tims would have been more than double the number 
of our martyred Presidents; and in France the num- 
ber would have been four times as great. Had the 
number of assassinations in England, in proportion 
to the attempts, been the same as in this country, 
the number of victims would have been seven, while 
in France the number would have been twelve. This 
demonstrates that the difference between our country 
and other countries lies in the fatality of the attempts, 
and not in the number. Not only does the United 
States favorably compare with England and France 
in respect to these attempts at assassination, but in 
point of fact there have been more than double the 
number of attempts in England and more than four 
times the number of attempts in France, since the 
organization of the Federal government. It follows 
that this country would have been comparatively free 
from these tragedies if reasonable precautions had 
been taken to protect the person of the President; 
and that it is not so vital to guard against attempts 
at assassination as to prevent such attempts from 
proving fatal, by the exercise of reasonable care on 
the part of the President himself, and by affording 
him proper means of protection. 



56 ADDRESSES 

Following this line of inquiry into some of the 
details of the four attempts upon the lives of our 
Chief Magistrates, it will be found that three were 
successful owing to the absence of ordinary safe- 
guards, and that the fourth would have been equally 
fatal had not the weapons missed fire from some 
almost miraculous cause. 

The would-be assassin of President Jackson was 
permitted to approach within a few feet of his per- 
son, and deliberately attempt to discharge two pis- 
tols ; the assassin of President Lincoln entered the 
theatre box where the President was sitting, quietly 
barred the door behind him, and held his weapon 
within a few inches of the head of his victim ; the 
assassin of President Garfield approached from be- 
hind to within a few feet of his person, fired one 
shot, and then, unmolested, took deliberate aim and 
discharged the fatal bullet ; and the assassin of Pres- 
ident McKinley held his pistol at the President's 
breast. 

Had the portico of the Capitol been properly 
watched as the President passed along, the would- 
be slayer of Jackson, who for some time had been 
walking about unnoticed, would have been appre- 
hended ; had the entrance to the box in Ford's The- 
atre been protected against intruders, Lincoln would 
not have been shot ; had there been some person on 
watch to observe the approach of Guiteau as the Pres- 



PROTECTION OF THE PRESIDENT 57 

ident and Mr. Blaine walked unattended through the 
waiting-room of the railway station on that fatal July 
morning, Garfield would not have been stricken down ; 
and had it not been the custom for the President, on 
all public occasions, freely to shake hands with large 
crowds of people, or had such hand-shaking been 
conducted under proper regulations and precautions, 
McKinley would have been alive to-day. 

These considerations strongly confirm the view 
that the number and frequency of our national 
tragedies are not due to the prevalence of a spirit 
of assassination, but spring from our over-confidence 
and want of caution; and that the most effective 
remedy lies in keeping, as far as possible, suspicious 
persons at a safe distance from the President. 

If the real cause of these oft-repeated catastrophes 
be traced to this source, the situation must be 
recognized and met by the exercise of the same 
intelligence, common sense, and sound judgment 
which have ever characterized the American people 
in dealing with grave public matters. 

The sentimental notion that, because we are a 
democracy and the people have been accustomed 
freely and on all occasions to meet their Chief 
Magistrate, it would be unrepublican and savor of 
royalty to impair this time-honored custom, must 
not stand in the way where the life of the Presi- 
dent is at stake. 



58 ADDRESSES 



If the universal experience of other civilized 
peoples, confirmed by our recent history, teaches 
that the safety of the Head of the State is depend- 
ent upon surrounding his person with proper safe- 
guards, it is folly for this country to ignore this 
fact on the imaginary ground that we are a chosen 
people, and an exception to all ordinary laws. 

The conditions which might have rendered it 
reasonably safe for the President to mingle openly 
with the people in the early days of fhe Republic 
are changed, and we must adapt ourselves to the 
new environment. There is a great difference be- 
tween a sparsely settled country, consisting largely 
of agricultural communities, with slow and difficult 
means of communication, and a country inhabited 
by many millions of people of different nationalities, 
with the railway, the telegraph, and the telephone, 
and with the conflicting social forces of the latter 
part of the nineteenth century. In a few days, his 
coming having been freely advertised, the President 
may travel from ocean to ocean, and come in con- 
tact with a third of the population of the country; 
and the same facilities for the annihilation of space 
and time are afforded the would-be assassin. " New 
occasions teach new duties; time makes ancient 
good uncouth." 

The bill recently reported to the United States 
Senate from the Judiciary Committee by Senator 



PROTECTION OF THE PRESIDENT 59 

Hoar is certainly a movement in the right direction. 
By section 7 of the bill, u The Secretary of War 
is authorized and directed to select and detail from 
the Regular Army a sufficient number of officers 
and men to guard and protect the person of the 
President of the United States without any un- 
necessary display." If this provision should be 
supplemented by the appropriation of a sum of 
money, to be at the disposal of the President for 
the purpose of securing additional police protec- 
tion, it would be a further aid. 

It is said that the President of the French 
Republic does not attend public meetings, speak 
from the platforms of railway cars, move around in 
an approachable and conspicuous way at fairs and 
expositions, or hold open levees for the shaking of 
hands. 

As supplementary to the above legislation, if the 
President should exercise, so far as practicable, the 
same precautions, the risk would be still further 
reduced, The visible guard surrounding the Pres- 
ident of itself would have a tendency to prevent 
these attacks. It is a somwhat significant fact 
in this connection, that no assault has ever been 
attempted upon the President in the White House, 
where reasonable precautions are taken. 

The situation does not demand that our Chief 
Magistrate shall travel from place to place with 



60 ADDRESSES 

the military pomp of some European rulers or 
with the gorgeous pageantry of Queen Elizabeth; 
but it does demand that he shall be accompanied 
by reasonable safeguards, appropriate to the sim- 
plicity and dignity of republican institutions. 

Since the death of President McKinley, the 
thoughts of the people and of Congress have been 
mostly occupied in the consideration of measures 
for the prevention of these attempts rather than in 
the means for guarding against their fatality. The 
difficulty of preventing attempts through legislation, 
except in the particular already mentioned, is that 
the subject in a large measure lies beyond the 
control of laws. When we consider the class of 
persons who commonly make these assaults, it will 
be found that the laws have little deterrent effect 
upon them. Let us take, for illustration, this 
country and England. 

Of the ten attacks upon the lives of English 
rulers since 1789, four were by persons pronounced 
insane; three by persons unknown, who fired from 
a distance; and two of the remaining three, from 
the nature of the assaults, were seemingly by per- 
sons acting under the impulse of some imaginary 
wrong. In the case of the six assaults on Queen 
Victoria, three were manifestly by insane persons; 
and it is questionable if more than one out of the 
six was by a person of sound mind. 



PROTECTION OF THE PRESIDENT 61 

In this country we find that the would-be assassin 
of President Jackson was pronounced hopelessly in- 
sane by a jury after five minutes' deliberation, that 
the assassin of President Garfield is universally ad- 
mitted to have had an unbalanced mind, and that 
the medical world is now divided on the subject of 
the sanity of the slayer of President McKinley. The 
conclusion reached by Dr. Channing, after careful 
investigation of this person's life, habits, and antece- 
dents, raises a strong doubt, at least, respecting his 
mental condition. Dr. Channing's diagnosis indi- 
cates mental impairment, which assumed the form 
of delusions; the exciting causes of the act being 
the reading of anarchistic literature and attending 
anarchistic meetings. The assassin of President 
Lincoln alone forms an exception to the general 
type. In that instance the attack was the outcome 
of a political conspiracy. 

We find, then, that in England these assaults 
have been largely mad attempts; and that in this 
country there have been two mad attempts, a third in 
the nature of a mad attempt inspired by anarchistic 
teachings, and a fourth the outgrowth of political 
strife. It is plain that no laws would have checked 
the insane Lawrence, who imagined that he had been 
wrongfully deprived of the crown of England; or 
the conspirator Booth; or the unhinged Guiteau, 
who, brooding over his failure to obtain office, be- 



62 ADDRESSES 

came possessed of a mad desire to become the cyno- 
sure of all eyes; or the morbid Czolgosz, incited by 
anarchistic teachings — unless possibly our laws had 
prevented anarchism from crossing the Atlantic. 

Fundamentally, this form of assassination is the 
result of environment. The disease is too deep- 
seated for legislative cure. We are confronted with 
two associated causes which cannot be eradicated : 
the social and industrial conditions of modern so- 
ciety, and the unbalanced mind, — the extremes of 
wealth, power, ease, and lavish luxury on the one 
hand, and poverty, ignorance, misery, and the strug- 
gle for existence on the other, in a society which 
also contains the diseased brain, the dethroned rea- 
son, homicidal mania; the victim of the delusion of 
imaginary wrongs to himself, his class, or his nation- 
ality ; the would-be suicide, who thinks if he kills a 
ruler monuments will be erected to his memory ; the 
degenerate, the fanatic, and the criminal. So long 
as these social conditions exist we shall not be free 
from attempts to assassinate our Chief Magistrate. 

But we may still ask, will not some general remedial 
legislation by Congress help the situation? With re- 
spect to mad attempts, which are the most common, 
or attempts resulting from political conspiracy, it is 
doubtful if additional legislation other than that which 
concerns the personal protection of the President 
would prove in any considerable degree effective. 



PROTECTION OF THE PRESIDENT 63 

We have had but one attempt in the nature of a 
political conspiracy, which arose under exceptional 
circumstances; and it may be said that we are rea- 
sonably safe, for the present, from any attempt of this 
character. There never was a time in the history of 
this or any other country when the affections of the 
people for their government and their Chief Magis- 
trate were so strong and all-pervading. Grave and 
perilous political questions like slavery and the right 
of secession no longer rouse the violent passions of 
the people and divide the country into hostile camps. 

We must not, however, place too much confidence 
in the continuation of the existing state of affairs. 
The danger of a disputed succession to the Presi- 
dency, such as existed in 1876, cannot be ignored. 
This is a danger inherent in our electoral system, and 
is the weak spot in our Federal form of government. 

Nor must we overlook the possible consequences of 
a conflict between labor and capital under present in- 
dustrial methods. It is an economic law that periods 
of general financial depression occur about every 
twenty-five years ; and if the situation during one of 
these crises should be aggravated by a shortage of 
crops, it might produce conditions which lead to po- 
litical conspiracies. But no such situation seems near 
at hand ; and we may rest reasonably secure against 
attacks upon the life of the President springing from 
any such cause. 



64 ADDRESSES 

The assassinations which have startled the world 
during the past ten years have been by anarchists, 
and the most universally beloved President in our 
history has fallen a victim. This great sorrow still 
overshadows the country, and the people are waiting, 
hoping, praying, that Congress will in some way 
shield the nation from such tragedies in the future. 
It is a most difficult crisis to meet. We have already 
pointed out that the field of effective legislation on 
this subject is limited ; at the same time such laws as 
we believe will prove beneficial should be speedily 
enacted. 

The present danger is not so much from anarchistic 
conspiracies hatched by any of the known groups of 
anarchists, as from some morbid individual who feels 
that he must become the executioner of anarchy, — 
the most dangerous criminal known to history. 

It is fifteen years since August Spies and others 
were executed. Had any of the groups of Chicago 
anarchists, in revenge for their death, planned to 
assassinate the President, many opportunities would 
not have been wanting. President Carnot, Empress 
Elizabeth, and King Humbert have all been assassi- 
nated by some member of a group of Italian anar- 
chists. A branch of this group is located in Paterson, 
New Jersey, and Bresci went from there on his mis- 
sion to kill the King of Italy. Had this group in- 
cluded among its intended victims the President of 



PROTECTION OF THE PRESIDENT 65 

the United States, the accomplishment of that purpose 
at any time would have been an easy task. 

It is undoubtedly true that free institutions afford 
some measure of protection against these attacks, 
and that they have been mainly directed against the 
rulers of European countries, owing to different polit- 
ical and social conditions. But still our recent expe- 
rience has taught that the freest government is not 
exempt from this danger, and that we must guard 
against it in every possible way. It is also true that 
the wisdom of extreme repressive measures is doubt- 
ful. The experience of Spain and other countries has 
shown that drastic legislation has always been fol- 
lowed by renewed attempts of a more deadly and 
violent kind. 

The type of anarchists who seek to enforce their 
doctrine by assassination discloses difficulties in the 
way of meeting the situation by laws. These indi- 
viduals may be classed in the same category with 
those who make what are known as " mad attempts " 
upon the Head of the State. According to Regis, 
they are the typical regicides or magnicides, who have 
existed from remote antiquity. They are fanatics 
with minds tainted by insanity, eccentricity, epilepsy, 
and suicidal impulse. We are not here referring to 
the revolutionary anarchists as a body, but to the 
particular type who execute these deeds of violence 
and death. Professor Lombroso, of the University 

5 



66 ADDRESSES 

of Turin, as the result of his researches, finds that a 
large number of this particular type of anarchists are 
madmen and criminals. Some who had attempted 
assassination were epileptics; others were victims of 
alcoholism ; others were indirect suicides, rejoicing 
at the opportunity of being put to death for the 
murder of a ruler; others were partially demented, 
imagined themselves persecuted, and were carried 
away by a violent impulse for assassination. In no 
case have they been known to have had accomplices. 
They " are almost always alone in concealing, pre- 
paring, and accomplishing their deeds, being unwill- 
ing to have anyone share with them the merits and 
honors." 

It is hard to reach this type of anarchist by leg- 
islation. He is not easily discovered in the country, 
nor easily kept out. It is said that the leader of an 
Italian group of revolutionary anarchists travels from 
country to country at will. 

The exciting causes which lead to assassination by 
this type of anarchist are anarchistic books, pam- 
phlets, papers, and attendance upon gatherings of 
revolutionary anarchists. Although we have now 
reached a field where legislation may help, a mo- 
ment's consideration will show the difficulties that 
are encountered. 

Anarchy, or anarchism, is a broad term. There is 
philosophical anarchism and revolutionary anarchism ; 



PROTECTION OF THE PRESIDENT 67 

and there are philosophical anarchists, revolutionary 
anarchists, and the anarchists of terror. 

Philosophical anarchism, which is beyond legisla- 
tive control, is a theory of social life based upon an 
ethical view of human relations. It is the philoso- 
pher's dream of a perfect state of society composed 
of perfect human beings. It signifies that if every- 
body did what was right there would be no need 
of government. It is " individualism run mad." Its 
falsity is based upon the assumed premise of perfec- 
tion of humanity. Many thinkers believe it is the 
goal which society should strive to reach and which 
eventually will be attained. In a purely ethical sense, 
some of our greatest philosophers may be classed as 
anarchists. 

Anarchy is the antithesis of government. It is 
society without government. It denies the utility 
of all government. It calls for a state of absolute 
individual liberty and equality. "All institutions — 
economic, ethical, religious, or political — that in any 
sense circumscribe or limit the equality, freedom, 
and liberty of men as individual units are, therefore, 
an evil to be eradicated." " Free democratic govern- 
ments are no better than despotic monarchies." It 
ascribes all the evils of society to law and govern- 
ment. As some reformers attribute social evils to 
ignorance or other causes, the anarchist attributes 
them to government, and proposes " the abolition 



68 ADDRESSES 

of all law, government, and authority as a universal 
panacea." 

If the writers on anarchism limited their lan- 
guage to the legitimate discussion of their theory 
of society, the State could not well complain; but 
such is not the fact. In Proudhon, Bakunin, Kro- 
potkin, and other writers, are found thoughts and 
expressions which incite to violence, and which pro- 
voke the writings and pamphlets of the radical 
revolutionary anarchists. We may cite a few ex- 
amples of their teachings and maxims : 

" Governments are the scourge of God." 

" Property is robbery." 

" Theft is the recovery by violence from the rich 
of that which the rich have taken by violence from 
the poor." 

"Appropriation by force must be the anarchists' 
prelude to the wholesale insurrection which they will 
sooner or later enact." 

" Law has no title to the respect of men. Born of 
violence and superstition, and established in the in- 
terests of the consumer, priest, and rich exploiter, it 
must be utterly destroyed on the day when the people 
desire to break their chains." 

" No more laws ! No more judges ! Liberty, 
equality, and practical human sympathy are the only 
effectual barriers we can oppose to the anti-social 
instincts of certain among us." 



PROTECTION OF THE PRESIDENT 69 

Such ideas taken up by the extreme revolutionary 
anarchists lead to the expression of such sentiments 
as the following : 

" Our only hope is in earnest, organized action. 
Burn, kill, and destroy until we force the autocrats to 
turn. We have lost hope in God, hope in humanity, 
and hope in the world at large. Let every man do 
his duty. This is a time when the workingman will 
either become a slave or a master. Choose between 
the two, and choose at once. Let us give no quarter, 
and ask none ; only let us stand by each other, and 
each. man at his post. If we must die, let us die like 
men, and not slaves." 

By a process of evolution we are conducted, step 
by step, from the theory of anarchy through anar- 
chistic literature to revolutionary anarchy and its 
literature of violence, and thence to the anarchy of 
terrorism and its executioner, the typical regicide. 

Although anarchistic literature is in our public 
libraries, and anarchists are with us, there can be no 
question of the power of the State to forbid the pub- 
lication and circulation of writings calculated to incite 
to violence and murder, and to forbid the assemblage 
of persons for the purpose of instigating and advis- 
ing violence and murder. The constitutional right 
of free speech cannot here be invoked. Free speech 
is a no more sacred right than self-protection. Free 
speech does not mean the right to take, or to incite 



70 ADDRESSES 

the taking of, the life, property, or reputation of 
another. 

All personal rights are reciprocal and mutually 
binding, and are enjoyed upon the condition of re- 
specting the enjoyment of the same rights by others ; 
and the purpose of the law is the enforcement of these 
mutual obligations. Without invoking the broader 
and more elastic rule that free speech may be re- 
strained respecting acts which are inimical to the 
peace, good order, and morals of a community, its 
restriction here rests upon the fundamental doctrine 
of personal rights and obligations. 

Revolutionary anarchists should be prohibited by 
severe penal laws from uttering, writing, or publishing 
language threatening, advising, or instigating the kill- 
ing of the President, or advising or instigating an- 
other to kill the President, or conspiring with others 
to kill the President. 

The comprehensive and carefully drawn bill of 
Senator Hoar, from which we have already cited 
one provision, covers this whole branch of the sub- 
ject. It punishes with death any person who, within 
the jurisdiction of the United States, shall wilfully 
kill or cause the death of the President or Vice- 
President of the United States, or any officer thereof 
upon whom the powers and duties of the President 
may devolve, or who shall wilfully cause the death 
of the sovereign or chief magistrate of any foreign 



PROTECTION OF THE PRESIDENT 71 

country ; and the same penalty is inflicted upon 
any persons who shall attempt to commit either of 
these offences. It punishes by a term of imprison- 
ment not exceeding ten years any person who, within 
the jurisdiction of the United States, shall instigate, 
advise, or counsel the killing of the President or 
Vice-President of the United States, or any officer 
thereof upon whom the powers and duties of the 
President may devolve, or who shall conspire with 
any other person to accomplish the same, or who 
shall instigate, advise, or counsel the killing of the 
sovereign or chief magistrate of any foreign country, 
or shall conspire with any other person to accom- 
plish the same. It punishes by imprisonment not 
exceeding ten years any person who shall, within the 
jurisdiction of the United States, by spoken words, 
or by written or printed words, uttered or published, 
threaten to kill, or advise or instigate another to 
kill, the President or Vice-President of the United 
States, or any officer thereof upon whom the powers 
and duties of the President may devolve. It fur- 
ther provides that any person so conspiring may be 
indicted and convicted separately, although the other 
party or parties to the conspiracy are not indicted 
or convicted ; and that any person who shall wilfully 
and knowingly aid in the escape from punishment 
of any person guilty of any of the above offences 
shall be deemed an accomplice after the fact, and 



72 ADDRESSES 

shall be punished as if a principal, although the 
other party or parties to the offence shall not be 
indicted or convicted. 

It will be observed that this bill includes not only 
the President, but the Vice-President and other per- 
sons in the line of succession to that high office, as 
well as the heads of foreign States. These additional 
provisions are important and necessary. Civilization 
and the comity of nations forbid that this country 
should become the vantage-ground for conspiracies 
to kill foreign rulers. We should prevent by law, 
so far as possible, assassins taking up their abode 
in this country mainly for the purpose of crossing 
the Atlantic at a convenient and opportune time to 
assassinate a foreign ruler. 

Although no person who has attempted to assassi- 
nate the President of the United States has escaped 
justice, our present Federal laws are manifestly 
defective and inadequate in that they make no pro- 
vision for the punishment of persons who kill, or 
attempt to kill, the Chief Magistrate. Had President 
McKinley been shot in Rhode Island or Maine, or in 
any other State where capital punishment has been 
abolished, the punishment of the assassin would have 
been limited to imprisonment for life. Had the 
assault on the President not proved fatal, the max- 
imum penalty for his would-be murderer, under the 
laws of New York, would have been but ten years. 



PROTECTION OF THE PRESIDENT 73 

There is no doubt of the power of Congress, 
under the Constitution, to make laws for the pro- 
tection of foreign rulers and ambassadors, because 
this subject comes within the law of nations. But 
the power of Congress to enact laws for the pro- 
tection of the President has been questioned. Time 
will not permit an entry into this field of discussion. 
The question has never been passed upon by the 
Supreme Court. It may be claimed, with a good 
deal of confidence, that the limitation of this power 
to other officers of the government when engaged 
in the duties of their office, does not apply to the 
President of the United States or other persons in 
the line of succession. The protection of the Presi- 
dent is a distinct question, far more vital and funda- 
mental than the protection of other government 
officers. 

The Constitution vests the executive 1 power in the 
President, and gives Congress the power to make 
all laws necessary for carrying into execution the 
powers vested by the Constitution in the govern- 
ment. Every government has the inherent power 
of self-preservation. The Supreme Court has often 
said that the government was endowed with all the 
powers necessary for its own preservation. To 
strike down the President is to strike down the 
executive head of the government, — the person 
charged at all times with the execution of the laws. 



74 ADDRESSES 

With the possible exception of treason, the assassi- 
nation of the President is the highest known crime 
against the United States; and the power of Con- 
gress to pass laws for the punishment of crimes 
against the United States has always been recog- 
nized and exercised. 

In addition to Senator Hoar's bill, some further 
protection may be afforded in more liberal extra- 
dition treaties, which possibly should cover an 
international police surveillance of the class of 
revolutionary anarchists w r ho instigate and advise 
assassination. 

The opinion expressed by some that the present 
situation justifies the passage of stringent laws 
respecting immigration and naturalization, I do not 
entertain. It is doubtful if such laws would accom- 
plish the purpose designed, and reach the revolu- 
tionary anarchists. Anarchy can be finally stamped 
out only through the influence of education. 
Although most of the anarchists in this country 
are aliens or of alien descent, it is a fact worthy 
of mention that, with the exception of the hope- 
lessly insane Lawrence, no alien or naturalized 
person has ever raised his hand against the Presi- 
dent of the United States. 

The whole question of the protection of the life 
of the President is one of the elimination of chances. 
This investigation has led me to conclude that the 



PROTECTION OF THE PRESIDENT 75 

primary thing is to safeguard the Presidents per- 
son, and that this should be supplemented by 
legislation along the lines considered. 

Among the reasons for my thankfulness for this 
invitation to address the New Hampshire Bar 
Association, is the opportunity it has afforded for 
some examination into the causes of the strikingly 
anomalous situation of this country concerning the 
assassination of its Chief Magistrates. I cannot 
express the gratification which I have derived in 
satisfying my own mind that the principal cause 
is carelessness and neglect, and does not lie deeper 
in the character of our people or government. 

No ! The liberty of this country is not the lib- 
erty of assassination. Our dream of self-government 
has not proved a delusion. The struggles and sac- 
rifices of mankind have not been in vain. The 
nation still remains the home of freedom, law, 
and justice. 

Each of these terrible tragedies has only added 
strength and unity to the Republic. The world 
has never witnessed such a tribute of love for a 
ruler, or devotion to a government, as when the 
martyred McKinley was laid to rest amid the hush 
of traffic and industry, while the nation, in silent 
prayer, stood like a statue upon whose brow was 
beating the soft, pure light of liberty. 

This country presents to-day as fair a picture of 



76 ADDRESSES 

government and society as ever met the eye of man; 
a picture full of human comfort, happiness, and well- 
being. There are spots on the surface like the 
spots on the surface of the sun, and there always 
will be so long as society is composed of imperfect 
humanity. 

We have erected a State majestic in its propor- 
tions, with liberty at its base, — the most powerful 
political system ever known, combining the free- 
dom of the individual and the community with the 
strength of a mighty empire. We have tried to 
secure the prosperity and welfare of the whole people, 
including all races and nationalities who have sought 
these shores. Political equality we have realized ; 
but equality of well-being and of human satisfaction 
we have not attained. The great and irreversible 
laws of nature, that wealth is the product of labor 
and sacrifice, and that men are born with unequal 
capacity and energy, oppose their insuperable bar- 
riers to such an accomplishment. But, through 
divine charity, we see the light which shall dispel 
this darkness. Indeed, the consummation seems 
near at hand, as we behold genius, through human 
sympathy, bestowing upon mankind the fruits of 
the talents derived from God. 



LAW AND REASONABLENESS 77 



LAW AND REASONABLENESS 

The Annual Address before the American Bar Association at Hot 
Springs, Virginia, on August 27, 1903. 

Mr. President and Gentlemen 

of the American Bar Association: 

THE first and most pleasant duty which falls 
upon me at this time is the acknowledg- 
ment of my deep appreciation of the very 
high honor of the invitation to address you at your 
annual meeting. 

I understand it is a law of this Association, estab- 
lished by its founders, that these invitations are not 
under any circumstances to be declined ; and that it 
has been decreed that this particular law is a com- 
mand proceeding from a sovereign power, and that 
ignorance of the law is no excuse. At the same time 
it must be confessed that obedience to your mandate 
is not an easy task. Our professional duties are 
laborious and exacting. Judges, as well as lawyers, 
are busy men, and time for preparation is limited. 

Another difficulty, which increases from year to 
year, is the choice of a subject. We are told that 
Augustus dealt the final blow to the Responsa Pru- 
denlum> the " answers of the learned in the law.'i 



78 ADDRESSES 

The probable cause was that the subjects were ex- 
hausted. I need hardly remind you that the answers 
of the learned in the law during the quarter of a cen- 
tury since this Association began its invaluable work, 
in the addresses of its presidents, the annual addresses, 
and the papers read, have so far covered the whole 
field of jurisprudence that the last three annual re- 
sponses of the jurisconsults were devoted to the 
elucidation of a single important topic of national 
concern. It is, therefore, with much hesitancy that 
I shall invite your attention to some observations on 
Law and Reasonableness. 

The essence and end of law are no doubt truthfully 
expressed in the maxims: 

" Law is the perfection of reason." 

" Reason is the soul of the law ; and when the 
reason of any particular law ceases, so does the law 
itself:' 

11 The reason and spirit of cases make law, not the 
letter of particular precedents." 

" Reason is the life of the law ; the common law 
itself is nothing else but reason." 

It is also undoubtedly true that the great body of 
the law is founded upon the dictates of right reason, 
natural justice, and common sense. 

But, notwithstanding all this, it is an historical fact 
that the growth and expansion of the law from primi- 
tive custom to the present time has been a continuous 



LAW AND REASONABLENESS 79 

struggle between the rigid rules of positive law and 
the standard of reasonableness and common sense of 
society in its upward march to a higher civilization ; 
and the struggle still continues. All through the 
centuries of the law's development in those two 
great systems of jurisprudence which have been 
adopted by the civilized world, the English law and 
the Civil law, there has been a constant effort to 
bring existing rules into harmony with advancing 
civilization. 

The phenomenon which always presents itself in 
progressive societies may be thus described: On the 
one hand, there is a body of legal rules which by 
nature are stable and enduring; on the other hand, 
there is a society with ever-changing social necessities 
and opinions. From the very nature of these con- 
ditions, which are permanent, there is the inevitable 
result that the old rules of law cease to conform to 
the new facts of life ; that they are not adapted to the 
ever-varying views of society; and that consequently 
they come, in part at least, to be regarded as narrow, 
unreasonable, and out of touch with progress and 
enlightened public sentiment. 

To keep the rules of positive law as nearly as 
possible abreast of social wants and public opinion, 
is the difficult problem which always has and always 
will confront progressive nations. That gulf can 
never be entirely bridged. A stationary body and 



80 ADDRESSES 

a moving body cannot be kept together. We can 
only by unceasing effort narrow the chasm. Some- 
times the spirit and temper of society are far in 
advance of legal rules; at other times they nearly 
meet. Upon the expedition with which the breach 
between law and social progress is lessened, or 
upon keeping them close together, depend, in large 
measure, the welfare of society and the happiness 
of the people. In progressive societies, says Maine, 
" it may be laid down that social necessities and 
social opinions are always more or less in advance 
of law. We may come indefinitely near to the clos- 
ing of the gap between them, but it has a perpetual 
tendency to reopen. Law is stable ; the societies we 
are speaking of are progressive. The greater or less 
happiness of a people depends on the degree of 
promptitude with which the gulf is narrowed." 

Such being the position of the law in its relation 
to progressive societies, what have the lawyers done 
to help relieve the situation ? Where have they 
stood in this long struggle between an unreasonable 
past and a reasonable present, between a body of 
rigid legal rules and an advancing civilization ? Are 
they justly open to the charge of riveting the chains 
which bind the community to customs and usages 
it has outgrown by their devotion to technicalities, 
legal forms, and precedents ? Have they stood with 
Selden when he exclaimed, " Equity is a roguish 



LAW AND REASONABLENESS 81 

thing " ? Have they been unmindful of the fact 
that they are largely responsible for the existing 
condition of the law at every stage of social prog- 
ress, and that upon them devolves the duty, in great 
measure, of keeping it in harmony with national 
growth? Have they failed to realize that the law 
is made for society, and not society for the law ; and 
that it should be adapted, as far as possible, to meet 
the " great, complex, ever-unfolding exigencies " of 
life and government? 

Let us first see how some of the great lawyers 
have answered these inquiries. 

It was Coke who said : " The principles of natural 
rights are perfect and immutable, but the condition 
of human law is ever changing, and there is nothing 
in it which can stand forever. Human laws are 
born, live, and die." 

It was Hale who declared: "We must remember 
that laws were not made for their own sakes, but 
for the sake of those who were to be guided by 
them. . . . He that thinks a state can be exactly 
steered by the same laws in every kind as it was 
two or three hundred years ago may as well imagine 
that the clothes that fitted him when a child should 
serve him when he was grown a man. The matter 
changeth, the custom, the contracts, the commerce, 
the dispositions, educations, and tempers of men and 
societies change in a long tract of time, and so must 

6 



82 ADDRESSES 

their laws in some measure be changed, or they will 
not be useful for their state and condition." 

It was Hardwicke who marked out and systema- 
tized that great body of rational and remedial rules 
we call equity, which has done so much to keep the 
law in touch with social progress. It was Mansfield 
who declared that the air of England was too pure 
to be breathed by a slave, who built up the com- 
mercial law to meet her expanding commerce and 
industries, and of whom Burke says : " His ideas go 
to the growing amelioration of the law by making 
its liberality keep pace with the demands of justice 
and the actual concerns of the world, — not restrict- 
ing the infinitely diversified occasions of men, and 
the rules of natural justice, within artificial circum- 
scriptions, but conforming our jurisprudence to the 
growth of our commerce and of our empire." 

It was Marshall who breathed into our Constitu- 
tion the breath of life, and who declared : " This 
provision is made in a Constitution intended to 
endure for ages to come, and, consequently, to be 
adapted to the various crises of human affairs. To 
have prescribed the means by which government 
should, in all future time, execute its powers would 
have been to change entirely the character of the 
instrument, and give it the properties of a legal 
code. It would have been an unwise attempt to 
provide, by immutable rules, for exigencies which, 



LAW AND REASONABLENESS 83 

if foreseen at all, must have been seen dimly, and 
which can be best provided for as they occur. To 
have declared that the best means shall not be used, 
but those alone without which the power given would 
be nugatory, would have been to deprive the legisla- 
ture of the capacity to avail itself of experience, to 
exercise its reason, and to accommodate its legislation 
to circumstances." 

It was Story who said : " Government presupposes 
the existence of a perpetual mutability in its own 
operations on those who are its subjects, and a per- 
petual flexibility in adapting itself to their wants, 
their interests, their habits, their occupations, and 
their infirmities." 

It was Shaw who declared : " It is the great merit 
of the common law that it is founded upon a com- 
paratively few broad, general principles of justice, 
fitness, and expediency, . . . generally comprehen- 
sive enough to adapt themselves to new institutions 
and conditions of society, new modes of commerce, 
new usages and practices, as the progress of society 
in the advancement of civilization may require." 

Such has been the position of the lawyers in the 
struggle between legal rules and social progress ; and 
this position is corroborated by the history of the 
law's development from early times. 

The history of the growth and expansion of the 
Roman and English systems of jurisprudence dis- 



84 ADDRESSES 

closes the important part taken by the lawyers in 
making the law more reasonable as society required. 
The doctrines and instrumentalities which have en- 
abled it to keep nearly abreast of the moral and 
intellectual growth of the people have been largely 
their work. 

When Rome extended her boundaries over Italy, 
and the rules of the civil law, embodied in the Twelve 
Tables, became narrow and unreasonable in their 
application to foreigners, it was the Roman juriscon- 
sults who conceived and carried into effect a code 
of rules which overrode the harsh civil code. They 
based this new code upon the assumption that there 
were certain ingredients in the law which were com- 
mon to Rome and other Italian communities. To 
justify this assumption, they appealed to tradition and 
observation. " The expedient to which they resorted," 
says Maine, " was that of selecting the rules of law 
common to Rome and to the different Italian com- 
munities in which the immigrants were born. . . . 
The Jus Gentium was accordingly a collection of 
rules and principles, determined by observation to be 
common to the institutions which prevailed among 
the various Italian tribes." 

When this doctrine became inadequate as an instru- 
ment for expanding the rules of the civil law for the 
purpose of meeting the wants and aspirations of the 
Roman people as they advanced to the conquest of 



LAW AND REASONABLENESS 85 

the world, the Roman lawyers borrowed a theory 
from Greek philosophy for the purpose of expanding 
the jus gentium, called the Law of Nature — a theory 
which soon became the basic principle underlying 
that vast superstructure known as Roman law ; a 
theory which has exerted a profound influence upon 
English law, and upon whose foundation rest the 
Law Merchant and modern International Law. To 
this same theory may also be traced the principle that 
all men are born equal, and are entitled to equal 
protection of the laws, which is found in the Decla- 
ration of Independence and in the Constitution of 
the United States. 

In giving expression to this theory, the Roman 
jurisconsults said: "All nations, who are ruled by 
laws and customs, are governed partly by their own 
particular laws, and partly by those laws which are 
common to all mankind. The law which a people 
enacts is called the Civil Law of that people, but 
that which natural reason appoints for all mankind is 
called the law of nations because all nations use it." 

The doctrine of the Law of Nature — first prac- 
tically utilized in the administration of justice by 
Roman jurists — whose primordial elements are uni- 
formity, simplicity, harmony, and equality, and whose 
broadening influence upon the jurisprudence of the 
world has been so potent and permanent, is the doc- 
trine of intrinsic reasonableness. It is the doctrine 



86 ADDRESSES 

prescribed by absolute, evident, and universal reason 
as manifested in the consent of reasonable men. It 
consists of a body of precepts which satisfy, and are 
in accord with, right human reason, and which are 
binding on all mankind by virtue of their inherent 
reasonableness. To the classical Roman lawyers, in 
the words of Sir Frederick Pollock, " It would be 
convenient to take ius naturale for the sum of rules 
of conduct which ought to be received because they 
are reasonable in themselves, and ius gentium for 
those which are received in fact by the general con- 
sent of civilized mankind." To the publicists of the 
Middle Ages, he says, " the Law of Nature presented 
itself as a rule of human conduct independent of 
positive enactment and even of divine revelation, and 
binding always and everywhere in virtue of its in- 
trinsic reasonableness." The same high authority 
declares that the Law Merchant " claimed the respect 
and aid of local magistrates as a branch of the Law 
of Nature, considered as a body of legal rules demon- 
strable by natural human reason, and therefore en- 
titled to universal obedience." And further, that 
Gentili the pioneer, and Grotius the founder, of Inter- 
national Law, laid its foundation on the broad and 
universal principles of the Law of Nature. 

While English jurisprudence has not adopted the 
Law of Nature, in the sense of the civil law, as the 
fundamental doctrine underlying the whole system, 



LAW AND REASONABLENESS 87 

our courts have appealed to its principles, and have 
been governed by its precepts. 

They have said that positive laws are invalid which 
contradict the Law of Nature, that it is binding in 
all countries and at all times, and that no human 
laws are of any validity if contrary to this. They 
have invoked this doctrine in their assertion that acts 
of Parliament which were contrary to universal rea- 
son and natural justice were void; that the funda- 
mental principles of right and justice inherent in the 
nature and spirit of the social compact restrain and 
set bounds to the power of legislation; and that the 
legislature cannot take away that security for personal 
liberty and private property for whose protection the 
government was established. Chancellor Kent ap- 
pealed to this doctrine when he asserted that " a 
statute is never to be construed against the plain and 
obvious dictates of reason"; and Mr. Justice Miller, 
when he declared : " It must be conceded that there 
are such rights in every free government beyond the 
control of the State. A government which recog- 
nized no such rights, which held the lives, the liberty, 
and the property of its citizens subject at all times to 
the absolute disposition and unlimited control of even 
the most democratic depository of power, is after all 
a despotism "; and Mr. Justice Brown, when he said: 
" It is sufficient to say that there are certain immu- 
table principles of justice which inhere in the very 



88 ADDRESSES 

idea of free government which no member of the 
Union may disregard." If the judges, in their appeals 
to the Law of Nature, have not succeeded in over- 
throwing the principle of the omnipotence of legis- 
lative power where it is exercised in violation of 
natural reason and common sense, we cannot but 
admire the lofty sense of justice by which they were 
actuated in their protest against its full and complete 
acceptance under all circumstances. 

But the courts have gone further. They have 
said that the Law of Nature is a part of the law of 
England. They have struggled more and more, as 
society has advanced in civilization, to make the law 
conform to its teachings; to make it "the sum of 
rules of conduct which ought to be received because 
they are reasonable in themselves " ; to bring it into 
harmony with natural reason as manifested in the 
consent of reasonable men. They have incorporated 
this doctrine of reasonableness into all branches of 
the law. It lies imbedded in the rights of person, 
in the rights of property, and in the rules of pro- 
cedure. It permeates the law of contracts and negli- 
gence. The exercise of the police power turns upon 
it. It limits and qualifies the enjoyment of individual 
rights. It is a kind of universal postulate underlying 
all rules of civil conduct. 

The courts have also called in aid this doctrine 
of reasonableness to justify a departure from the 



LAW AND REASONABLENESS 89 

strict rules of law. They have built up equity upon 
it, and relied on its precepts for decision in doubt- 
ful cases. They have founded the rules of constitu- 
tional interpretation upon it. The principles of the 
common law which are so frequently invoked by 
the judges may be said to rest on this doctrine, — 
those principles which Chief Justice Shaw calls " the 
broad, general principles of justice, fitness, and expe- 
diency." Mansfield appealed to the same doctrine 
when he declared : 

" The law of England would be a strange science 
indeed if it were decided upon precedents only. 
Precedents serve to illustrate principles and to give 
them a fixed certainty. But the law of England is 
exclusive of positive law, enacted by statute, depends 
upon principles, and these principles run through all 
the cases according as the particular circumstances 
of each have been found to fall within the one or 
other of them." 

The same doctrine was invoked by Mr. Justice 
Brewer when he said: 

" But passing beyond the matter of authorities, the 
question is essentially one of general law. It does not 
depend upon any statute ; it does not spring from any 
local usage or custom; there is in it no rule of property, 
but it rests upon those considerations of right and jus- 
tice which have been gathered into the great body of the 
rules and principles known as the 'common law.'" 



90 ADDRESSES 

But the lawyers have done much more than incor- 
porate into the law the theories and doctrines by 
which its rules have been made more rational in 
response to social changes and advancing civilization. 
They have devised those great remedial agencies, 
Fictions and Equity, by which the work has been 
largely carried on. It is almost wholly through these 
instrumentalities that for centuries the rules of law 
were enabled to meet the growing wants of society; 
for it is not until a comparatively recent period in 
the history of jurisprudence that legislation has been 
relied upon to any large extent as a remedial agency. 
And in respect to legislation, it will be found that 
the judiciary, through its power of construction and 
interpretation, has acted as a safeguard against the 
enforcement of unreasonable statute laws. 

It was the Roman jurisconsults who resorted to 
fictions for overcoming the severity of legal rules, 
and reconciling the letter of the law with common 
sense and justice. When large numbers of foreign- 
ers flocked to Rome, the strict rule of the civil code 
that no one but a Roman citizen could maintain 
suit became harsh and unjust; whereupon the Roman 
lawyers invented the fiction that if a foreigner averred 
he was a Roman citizen, the defendant could not 
traverse the allegation. From analogy to this Roman 
fiction, the Supreme Court of the United States, 
more than two thousand years afterwards, adopted 



LAW AND REASONABLENESS 91 

the fiction that all the members of a corporation are 
presumed to be citizens of the State which created 
it, and that no one shall traverse this presumption. 

Although legal fictions have been called rude 
absurdities, they were, especially in the early stages 
of jurisprudence, highly useful and beneficial instru- 
ments for expanding the stern rules of law as society 
demanded. " At a particular stage of social progress," 
says Maine, " they are invaluable expedients for over- 
coming the rigidity of law, and, indeed, without one 
of them, the Fiction of Adoption, which permits the 
family tie to be artificially created, it is difficult to 
understand how society would ever have escaped 
from its swaddling clothes, and taken its first steps 
towards civilization." 

" The supposition," declares Dicey, " that the cun- 
ning of lawyers has by the invention of legal fictions 
corrupted the fair simplicity of our original consti- 
tution, underrates the statesmanship of lawyers as 
much as it overrates the merits of early society. 
The fictions of the courts have in the hands of law- 
yers such as Coke served the cause both of justice 
and of freedom, and served it when it could have 
been defended by no other weapons. For there are 
social conditions under which legal fictions or sub- 
tleties afford the sole means of establishing that rule 
of equal and settled law which is the true basis of 
English civilization." 



92 ADDRESSES 

It is also true that the English judges and Roman 
jurists have really employed fictions in a much broader 
sense, for the purpose of changing, extending, and 
modifying the rules of law in order to bring them 
into harmony with social progress and the actual 
concerns of life. Upon the supposition that there 
actually existed in the body of the law a rule which 
would cover the facts of every case, they proceeded, 
as cases arose, to engraft upon the old law a new 
code. In theory, the law remained the same ; in fact, 
it had been changed. 

A marked illustration of this process is found in 
the decisions of Lord Mansfield, who added to the 
English law a body of rules, unknown to the common 
law, relating to bills of exchange, promissory notes, 
marine insurance, and other kindred subjects, to the 
end of " conforming our jurisprudence to the growth 
of our commerce and of our empire." 

There is an interesting description of how the law 
springs into existence through judicial decision in a 
case where there is no record of a preceding similar 
case, in Mr. Carter's notable address before this Asso- 
ciation on " The Ideal and the Actual in the Law " : 

" In all this the things which are plain and palpable 
are, (i) that the whole process consists in a search to 
find out a rule ; (2) that the rule thus sought for is the 
just rule, — that is to say, the rule most in accordance 
with the sense of justice of those engaged in the 



LAW AND REASONABLENESS 93 

search ; (3) that it is tacitly assumed that the sense of 
justice is the same in all those who are thus engaged, 
— that is to say, that they have a common standard of 
justice from which they can argue with, and endeavor 
to persuade each other ; (4) that the field of search is 
the habits, customs, business, and manners of the 
people, and those previously declared rules which have 
sprung out of previous similar inquiries into habits, 
customs, business, and manners." By this method " a 
rule is deduced which is declared to be the one which 
the existing law requires to be applied to the case." 

This process of case law legislation has been em- 
ployed since the birth of jurisprudence. It is still in 
active operation, and will so continue while the great 
body of our law is unwritten or common law and but 
a small fraction statute law. 

When legal fictions, in the progress of society, be- 
came unequal to the task of overcoming the rigidity 
of the rules of positive law, there grew up alongside 
of that system a body of principles known as equity. 
This was the work of the Roman praetors and the 
English chancellors. As the old rules became harsh 
and unreasonable and out of harmony with civiliza- 
tion, they gradually adopted this new and more per- 
fect system to meet social necessities and public 
sentiment ; a system which was " to stand side by side 
with the law of the land, overriding it in case of con- 
flict, as on some title of inherent superiority, but not 



94 ADDRESSES 

purporting to repeal it." They held that the proceed- 
ings in equity were not like the inelastic rules of law 
established from time immemorial, but were adapted 
to the existing state of society. 

" I wonder," said Chief Justice Vaughan, who was 
called to sit with the Chancellor in Fry v. Porter, " to 
hear of citing of precedents in matter of equity, for 
if there be equity in a case, that equity is an univer- 
sal truth, and there can be no precedent in it ; so that 
in any precedent that can be produced, if it be the 
same with this case, the reason and equity is the same 
in itself; and if the precedent be not the same case 
with this, it is not to be cited." 

To which the Lord Keeper Bridgman replied : 
" Certainly Precedents are very necessary and useful 
to us, for in them we may find the reasons of the 
equity to guide us; and besides, the authority of 
those who made them is much to be regarded. We 
shall suppose they did it upon great consideration and 
weighing of the matter, and it would be very strange 
and very ill if we should disturb and set aside what 
has been the course for a long series of time and 



ages. 



Although precedents have had their influence upon 
English courts of equity from the beginning, they 
were not considered of binding authority. We may 
here refer to the words of Lord Hardwicke : " When 
the court finds the rules of law risfht, it will follow 



LAW AND REASONABLENESS 95 

them, but then it will likewise go beyond them " ; and 
of Lord Cottenham : " I think it is the duty of this 
court to adapt its practice and course of proceeding to 
the existing state of society, and not, by too strict an 
adherence, to decline to administer justice, and to en- 
force rights for which there is no other remedy. This 
has always been the principle of this court, though 
not at all times sufficiently attended to." 

"It must not be forgotten," said Jessel, "that the 
rules of courts of equity are not like the rules of the 
Common Law, supposed to be established from time 
immemorial. It is perfectly well known that they 
have been established from time to time, — altered, 
improved, and refined from time to time." 

It is true that, both in Rome and England, equity 
ceased in time to be expansive. It was, however, one 
of the principal instrumentalities created by Roman 
and English judges, by which for many generations 
the law was expanded with social growth. 

We have now reached the third, and, in modern 
times, by far the most important remedial agency for 
the amelioration of the law, namely, legislation. This 
instrumentality rests upon the doctrine of legislative 
omnipotence. In Great Britain Parliament has abso- 
lute power. In the United States the same uncon- 
trollable power has been vested by the people in the 
legislature, subject to the limitations imposed by the 
Federal and State constitutions. From the nature of 



96 ADDRESSES 

this power it is obvious that in this field of reform 
judicial action is limited. Let us examine briefly the 
position of the courts with respect to this all-potent 
remedial agency. 

Before the division between the legislative and judi- 
cial powers of the government had become so sharply 
defined, the courts, as we have already pointed out, vig- 
orously protested against the authority of the legisla- 
ture to enact a valid law which was in violation of 
natural justice and common sense. Such expressions 
are found in judicial decisions from Lord Coke in 
Bonham's case, who declared that " when an act of 
Parliament is against right and reason, or repugnant, 
or impossible to be performed, the common law will 
control it, and adjudge such act to be void," down 
to Mr. Justice Miller in Loan Association v. Topeka, 
and Mr. Justice Brown in Holden v. Hardy. 

Again, in their desire to make statute law reasonable 
and accord with public opinion, the courts in early 
times resorted to the doctrine of equitable construc- 
tion. Upon this principle they disregarded the letter 
of the statute, and extended its provisions to cases 
" within the same mischief," or they excepted from the 
statute, though covered by its terms, other cases on 
considerations of justice and right reason. 

" From this judgment and the cause of it," says Plow- 
den in a note to Eyston v. Studd, "the reader may 
observe that it is not the words of the law, but the 



LAW AND REASONABLENESS 97 

internal sense of it that makes the law, and our law, like 
all others, consists of two parts, viz., of body and soul ; 
the letter of the law is the body of the law, and the 
sense and reason of the law are the soul of the law. 
. . . And it often happens that when you know the 
letter you know not the sense; for sometimes the 
sense is more confined and contracted than the letter, 
and sometimes it is more large and extensive. And 
equity enlarges or diminishes the letter according to 
its discretion." 

Although the doctrine of equitable construction has 
been disowned as encroaching upon the exercise of 
legislative power, the courts still call to their aid, in 
their efforts to make statute law conform to the dic- 
tates of common sense, essentially the same principle 
in another form. They now declare that a statute 
should be construed with reference to its spirit and 
reason. This principle is laid down by the Supreme 
Court in Trinity Church v. United States. The ques- 
tion in issue was the applicability of the Alien Contract 
Labor Law to a clergyman who came to this country 
under a contract to enter the service of a church. It 
was conceded that the case came within the letter 
of the law. 

" It is a familiar rule," said the court, " that a thing 
may be within the letter of the statute and yet not 
within the statute, because not within its spirit nor 
within the intention of its makers. This has been 

7 



98 ADDRESSES 

often asserted, and the reports are full of cases illus- 
trating its application." 

In support of its conclusion, the court cites from 
its opinion in United States v. Kirby : 

" All laws should receive a sensible construction. 
. . . The reason of the law in such cases should pre- 
vail over its letter. The common sense of man ap- 
proves the judgment mentioned by Puffendorf, that 
the Bolognian law which enacted ' that whoever drew 
blood in the streets should be punished with the ut- 
most severity,' did not extend to the surgeon who 
opened the vein of a person that fell down in the 
street in a fit. The same common sense accepts the 
ruling, cited by Plowden, that the statute of ist Ed- 
ward II., which enacts that a prisoner who breaks 
prison shall be guilty of felony, does not extend to a 
prisoner who breaks out when the prison is on fire, 
■ for he is not to be hanged because he would not stay 
to be burned.' " 

The courts have also employed presumptions exten- 
sively to make statute law reasonable. There is the 
presumption against injustice ; the presumption against 
an absurdity or absurd consequences; the presump- 
tion against inconvenience or hardship ; the presump- 
tion against an impossibility; the presumption as to 
public policy, which means that the legislature does 
not intend to violate public morality or the principles 
of sound public policy. These and other presumptions 



LAW AND REASONABLENESS 99 

are resorted to where statutes are in any way doubtful 
or ambiguous, and so open to more than one con- 
struction, in order that they may conform to reason 
and common sense. 

The invocation of the doctrine of reasonableness 
by the courts in aid of progress and the protection 
of society, is strikingly illustrated in the conflict be- 
tween legislative omnipotence and the constitutional 
guaranties of personal liberty and equality secured 
by the Fourteenth Amendment to the Constitution 
of the United States. 

When the Constitution was ratified in 1789, the 
people were fearful of centralization and consolidation, 
and hence the bill of rights embodied in the first ten 
amendments was speedily adopted. These amend- 
ments only restrain the national government, and 
have no application to the States. After the close of 
the Civil War in 1865, public opinion had changed, 
and in 1868 the Fourteenth Amendment became a 
part of the supreme law of the land. By its provis- 
ions the States are prohibited from passing or enforc- 
ing any law which shall deprive any person of life, 
liberty, or property, without due process of law, or 
deny to any person the equal protection of the laws. 

We have, on the one hand, the State legislature 

clothed with the police power, the taxing power, the 

power of eminent domain, and other general powers ; 

and on the other hand, this constitutional guaranty of 

LflFC. 



100 ADDRESSES 

individual liberty and equality. In dealing with this 
situation the Supreme Court has declared that there 
is a boundary line beyond which the legislature will 
not be permitted to pass ; and this line is established 
by the application of the doctrine of • reasonableness. 
It is held that the exercise by the legislature of its 
great powers in an unreasonable way is not due pro- 
cess of law, or equal protection of the laws, within the 
meaning of the Fourteenth Amendment. In reaching 
this position, it became necessary for the court to lay 
down a principle which is far-reaching, and fraught 
with momentous consequences, namely, that the ques- 
tion of what is reasonable is a judicial and not a legis- 
lative question. As this question was first left by the 
court in Munn v. State of Illinois, it might have been 
supposed that it was for the legislature to determine 
what is reasonable. In the subsequent case, however, 
of Chicago Railway Company v. Minnesota, it was de- 
cided that the legislature could not authorize the im- 
position of unreasonably low rates, since such action 
would deprive railroads of their property without 
due process of law. And in later cases it has been 
authoritatively adjudicated that the question of what 
is reasonable is for the court and not for the legisla- 
ture. In Covington Turnpike Company v. Sanford, 
the court declared : 

" There is a remedy in the courts for relief against 
legislation establishing a tariff of rates which is so 



LAW AND REASONABLENESS 101 

unreasonable as to practically destroy the value of 
the property of companies engaged in the carrying 
business, and that especially may the courts of the 
United States treat such a question as a judicial 
one, and hold such acts of legislation to be in con- 
flict with the Constitution of the United States, as 
depriving the companies of their property without 
due process of law, and as depriving them of equal 
protection of the laws." 

The paramount inquiry by the Supreme Court in 
all cases involving the exercise of the police power 
is whether the action of the legislature is reasonable 
under the circumstances, or an arbitrary and unreason- 
able interference with individual liberty. An admira- 
ble summary of the court's views on this important 
subject is found in Lawton v. Steele; 

" To justify the State in thus interposing its author- 
ity in behalf of the public, it must appear, first, that 
the interests of the public generally, as distinguished 
from those of a particular class, require such interfer- 
ence ; and, second, that the means are reasonably nec- 
essary for the accomplishment of the purpose, and not 
unduly oppressive upon individuals. The legislature 
may not, under the guise of protecting the public 
interests, arbitrarily interfere with private business, 
or impose unusual and unnecessary restrictions upon 
lawful occupations. In other words, its determination 
as to what is a proper exercise of its police powers is 



102 ADDRESSES 

not final or conclusive, but is subject to the supervision 
of the courts." 

At the close of the opinion in Holden v. Hardy, 
after an elaborate review of the cases and underlying 
principles, the court said : 

" The question in each case is whether the legisla- 
ture has adopted the statute in exercise of a reason- 
able discretion, or whether its action be a mere excuse 
for an unjust discrimination, or the oppression or spo- 
liation of a particular class." 

So, likewise, classification by the legislature of cor- 
porations or trades for the purposes of taxation or 
regulation must be reasonable. As the court de- 
clared in Railway Company v. Ellis, upon full con- 
sideration of this subject : 

Classification " must always rest upon some differ- 
ence which bears a reasonable and just relation to the 
act in respect to which the classification is proposed, 
and can never be made arbitrarily and without any 
such basis. ... It is apparent that the mere fact 
of classification is not sufficient to relieve a statute 
from the reach of the equality clause of the Four- 
teenth Amendment, and that in all cases it must 
appear not only that a classification has been made, 
but also that it is one based upon some reasonable 
ground — some difference which bears a just and 
proper relation to the attempted classification — and 
is not a mere arbitrary selection." 



LAW AND REASONABLENESS 103 

The standard of reasonableness is also applied to 
legislative acts establishing rules of procedure. To 
constitute due process of law such rules must " be 
reasonably suitable to the nature of the case." For 
example, in Wheeler v. Jackson it was held that a 
statute of limitations must not unreasonably limit 
the opportunity to enforce a right by suit. 

Our highest form of statute law is the Federal 
Constitution. The Roman jurists tell us that each 
nation is governed partly by its own particular laws 
and partly by laws ordained by natural reason, which 
are common to all nations. So with us, each State is 
governed partly by its own particular laws, and partly 
by the paramount law of the Constitution which is 
common to all the States. And with respect to this 
paramount law the Supreme Court has pursued a 
method of interpretation which conforms to natural 
reason. Recognizing that the supreme law of this 
great cluster of States must harmonize with national 
growth, its canons of construction may be said to 
rest upon the precepts of the Law of Nature, upon 
the doctrine of intrinsic reasonableness. They are, 
in substance, a body of rules demonstrable by nat- 
ural human reason. A constitution, it is held, is a 
frame of government intended to endure for ages. 
It is not a rigid code, but a declaration of general 
principles. It is not governed by the rules of posi- 
tive law, nor by those which apply to ordinary statutes, 



104 ADDRESSES 

charters, and private writings. It is to be construed 
fairly, liberally, and on broad, general lines, in order 
that it may accomplish the great purposes of its 
founders, and carry into effect the principles of gov- 
ernment for which it was organized. It presupposes 
a " perpetual mutability " in society, and a " perpet- 
ual flexibility " in adapting itself to the national 
wants, habits, arid aspirations. " The powers which 
are conferred, the restrictions which are imposed, 
the authorities which are exercised, the organization 
and distribution thereof which are provided, are in 
each case for the same object," — the common benefit, 
security, and happiness of the people. " It is a con- 
stitution we are expounding," exclaimed Marshall ; 
and Marshall's decisions are the incarnation of ra- 
tional interpretation and common sense. 

Such has been the attitude of the courts and 
lawyers in the ever-existing struggle between the rules 
of positive law and advancing civilization. They 
have striven to keep the law in harmony with social 
progress, to make it more reasonable as social neces- 
sities and public sentiment have demanded. Ever 
recognizing that " the matter changeth, the custom, 
the contracts, the commerce, the dispositions, educa- 
tions, and tempers of men and societies," they have 
conceived theories, invoked doctrines, and inaugurated 
instrumentalities to relieve the situation. They have 
carried on judicial legislation from the infancy of the 



LAW AND REASONABLENESS 105 

law in order that it might advance with society. By 
the adoption of broad and elastic rules of interpre- 
tation, they have maintained, in large measure, the 
supreme law of the land in harmony with national 
growth ; and they have stood as a barrier against the 
enforcement of capricious and arbitrary laws enacted 
by the great remedial agency upon which the com- 
munity now mainly relies. 

The history of jurisprudence, as we have seen, finds 
society, in progressive nations, always in advance of 
the law. The evolution of law follows, and never 
precedes, the evolution of society. Solon declared he 
gave the Athenians the only laws they were fitted to 
receive. Nor can the law arrest social progress, though 
it may temporarily retard it. The great forces which 
govern and give direction to the life of a people lie 
beyond the control of legal rules. The law must 
accept the situation. It can only strive to make its 
rules conform to social conditions. It can only 
"move towards existing conceptions of right, justice, 
humanity, reason, and public policy." Nor can the 
law materially change actual conditions. It is impos- 
sible to legislate society into righteousness, justice, or 
freedom. It took a hundred years for the Norman 
kings to force the feudal system upon England ; and 
at the end of that long conflict the great body of 
ancient customs and usages which were congenial to 
the English people remained undisturbed. Commerce 



106 ADDRESSES 

and inventions have brought mankind in closer touch 
than ever before. We hope that war in time will 
cease ; but it must not be forgotten that arbitration 
will not become an enforceable canon of international 
law until the great mass of the civilized people of the 
world believe in and desire that method of settling 
controversies between nations. 

The purpose and end of law are the welfare of 
society and the happiness of the people. The law 
should always be viewed from the standpoint of so- 
ciety, and not from the standpoint of the law itself. 
Society is entitled to have such laws as it desires, and 
it will obey none other. The law is made for society, 
and not society for the law. The interests of society 
are primary; the interests of the law secondary. 
Society is the master, and the law its handmaid. The 
law must march with society; the Constitution must 
march with the nation. 

In our day and generation we are confronted with 
the same problem of adapting the old rules of law 
to the new facts of life; of keeping them in accord 
with commercial and industrial growth and national 
development. There is no way of making the law 
sufficiently elastic and mutable to meet fully the ever- 
varying wants of society in the presence of an expand- 
ing civilization. Our duty lies in the effort to make 
it, as far as possible, fit and suitable to new conditions 
as they present themselves. 



LAW AND REASONABLENESS 107 

Almost every important case covers a group of 
facts which are different from any other recorded case. 
Analogies, settled principles, cases nearly similar, may 
help, but they neither satisfy the mind nor meet the 
real issue. If it be a constitutional question, there are 
probably included in that group new facts or circum- 
stances which represent national growth and changed 
social relations. These are the important things to 
consider in reaching a proper conclusion, if the law 
is to be kept in harmony with civilization. 

So, too, a case may arise which includes in its 
group of facts new commercial or industrial condi- 
tions. In the determination of such a case society 
demands that these new elements receive recogni- 
tion, that the law may conform to the actual business 
of life. 

It is by grappling with the great living realities 
that legal conclusions are reached which meet social 
necessities. Laws should be interpreted and decisions 
rendered in the spirit of the present, not of the past. 
Logic and due regard for precedent should be com- 
bined with the statesman's breadth of vision. Con- 
sistency may be extended too far; it is sometimes 
a doubtful virtue. Had Jefferson been consistent, we 
should have lost the Louisiana purchase. Had Lin- 
coln been consistent, slavery would not have been 
abolished. The obligation we owe is not to the past, 
but to the present. Ancient civilization looked to the 



108 ADDRESSES 

past ; Christian civilization looks to the future. The 
ancient idea of a perfect primitive society is a poetic 
fiction; the modern idea of a society growing more 
humane, more just, more reasonable, is a reality. 

In this spirit tet us carry on the work which society 
has largely committed to our hands. Recognizing the 
usefulness of legal forms and precedents, may we ever 
hold fast to the great truth that reason is the life and 
soul of the law. May we rise to the lofty conceptions 
of the Law of Nature, — harmony, simplicity, uni- 
formity, — and may we call to our aid her precepts of 
universal reason ; and, extending our vision to law as 
the order of the universe, may we draw inspiration 
from Hooker's sublime words : " Her seat is the 
bosom of God, her voice the harmony of the world, 
all things in Heaven and Earth do her homage, — the 
very least as feeling her care, and the greatest as not 
exempted from her power." 



RHODE ISLAND 109 



CONTRIBUTIONS OF RHODE ISLAND 
TO THE AMERICAN UNION 

Address delivered at the Louisiana Purchase Exposition at St. Louis 
on Rhode Island Day, October 5, 1904. 

Mr. President, Your Excellency, 

Ladies, and Gentlemen: 

THE magnitude and character of this com- 
memoration of a national event, next only 
in importance to the Declaration of In- 
dependence, the adoption of the Constitution, and 
the Civil War, are in harmony with the lofty senti- 
ment which inspired it. Fifteen years after the adop- 
tion of the Constitution, the United States acquired 
the vast domain embraced within the Louisiana Pur- 
chase. Under the Federal system then established, 
this wilderness has been transformed into twelve 
flourishing States, with a residue of territory soon 
to become States. 

The marvellous spectacle which is here presented 
is simply the expression in material form of the patri- 
otic gratitude of the great people who now dwell 
within these boundaries, — gratitude for the provi- 
dential circumstances which led to the acquisition of 
this territory, for a form of government under whose 



110 ADDRESSES 

fostering care and protecting arm the people were 
enabled to organize into self-governing communities 
and become incorporated into this sisterhood of 
States; gratitude for the liberty and enlightenment 
and all the countless blessings which have flowed 
from a hundred years of membership in the Ameri- 
can Union. Surely the grandeur of this celebration 
rises no higher than the sentiment which gave it 
birth. 

It is the spirit of nationality that pervades and 
animates this scene. Beneath the energy and daring 
which converted this tract of forest into a moving 
world of civilization and art, beneath the magni- 
tude and comprehensiveness of this undertaking 
and the splendor of its execution, beneath this 
gathering of nations, States, and congresses, we 
see only the reflection of the love of America 
and her institutions. 

These structures of imposing architecture, with 
their wealth of statue and column ; these land- 
scapes and gardens, cascades and fountains ; this 
object-lesson of man's handiwork, progress, and 
achievements; this assemblage of the world's prod- 
ucts, processes, and resources, of the best works in 
every department of human activity, — art, science, 
invention, industry, agriculture, education, — 1 all these 
wonderful creations of form and color, harmony and 
beauty, were conceived in the spirit of patriotism 



RHODE ISLAND 111 

and dedicated to the education and advancement of 
all nations, tribes, and races. 

In the promotion of material progress, the evo- 
lution of new ideas, the elevation of artistic and 
industrial standards, through this commingling of 
different peoples in friendly competition ; in the por- 
trayal of the steps by which nations may advance 
through this object-lesson of all grades of civiliza- 
tion ; in the attainment of a higher and broader cul- 
ture through the educational forces which are here 
gathered ; in the unity and coincidence of thought 
and development of the human race which these 
exhibits inculcate ; in the common brotherhood of 
man and universal peace of which this Exposition is 
the exponent and herald, — we behold teachings and 
results which are in harmony with the lofty concep- 
tion they represent, — the American Union. 

In the making of that Union which inspired this 
commemoration, Rhode Island has borne a distin- 
guished part. It required two pilgrimages to solve 
the problem of free government. The compact on 
board the Mayflower must be supplemented by the 
compact on the shores of Narragansett Bay, before 
we reach the foundations on which rests the union 
of these States. To a democratic theocracy clothed 
with civil power, Rhode Island added the vital and 
saving element of untrammelled religious freedom^ 
the absolute separation of Church and State, the 



112 ADDRESSES 

declaration of intellectual liberty of thought and 
speech in its modern and broadest sense. No Fed- 
eral Union could have been formed, or, if formed, 
have long survived, without the introduction into the 
Constitution of this master principle which Rhode 
Island, one hundred and fifty years before, incorpo- 
rated for the first time into a civil government. 

Religion was the most potent force which entered 
into colonial life. It held society together. It shaped 
the destiny of the people. It was religion that drove 
our forefathers from England. It was the fear of a 
church establishment, next to the Stamp Acts, which 
led to the separation from the mother country. It 
was the apprehension of the exercise of authority in 
religious concerns that almost wrecked the Consti- 
tution, and its adoption was finally secured only 
with the understanding that this danger would be 
speedily removed by amendment. 

In the existing religious intolerance and diversity 
of sects there was an element of disintegration which 
all the wisdom and statesmanship of the framers could 
not meet, and which could be overcome only by the 
recognition of the fundamental truth on which Rhode 
Island was founded. It requires only the statement 
to carry conviction that, on any other basis than 
Rhode Island soul liberty, the attempt would have 
proved fruitless to unite in Federal bonds the Puri- 
tans of Massachusetts, the Quakers of Pennsylvania, 



RHODE ISLAND 113 

the Catholics of Maryland, the High Churchmen of 
New York, the Dutch Protestants of New Jersey, 
the Cavaliers of Virginia, the Huguenots of South 
Carolina, and the Methodists of Georgia. 

The Rhode Island doctrine of religious freedom 
stands as the first amendment to the Federal Consti- 
tution, and is incorporated into the organic law of 
every State. This is the immortal principle which 
Rhode Island has added to the structure of our gov- 
ernment, to the making of America. In its expan- 
sion and irradiation, there is found the cohesive force 
which has perpetuated this union of States. In the 
absence of this instrumentality, it would have been 
impossible to weld together the heterogeneous popu- 
lation of this country, drawn from so many nations 
and races, differing in language, religion, habit, and 
political ideas, into one homogeneous Federal Union, 
one American people. It is not our geographical 
position, natural resources, distinctions of race, which 
have made America, for other nations have had simi- 
lar advantages ; but it is the energy, the incentive, the 
freedom from discord, the desire to know and excel in 
everything, derived from the intellectual liberty of 
which Rhode Island was the first example and fore- 
runner. If, in this festival of the world's progress, 
the achievements, wealth, and power of the United 
States bear a most favorable comparison with other 
countries, it is to the great principle which Rhode 



114 ADDRESSES 

Island implanted into our institutions that we must 
look for the underlying and potent cause. 

But what Rhode Island first gave to the world has 
a deeper and broader significance. Religious liberty 
was a turning-point in universal history. It was the 
beginning of modern government. It stands " in the 
background of every democratic struggle in Europe." 
Upon the tomb of Jefferson, in the epitaph written by 
himself, his authorship of " the statute of Virginia for 
religious freedom," one hundred and fifty years after 
Roger Williams, is ranked next in importance to his 
authorship of the Declaration of American Independ- 
ence. The Columbian Exposition, upon a comparison 
of the world's achievements, brought in the verdict : 
" Toleration in religion, the best fruit of the last four 
centuries." In the presence of the far-reaching and 
momentous consequences which have flowed from 
this doctrine of soul liberty, Rhode Island is entitled 
to high distinction among her sister States, and her 
founder to the imperishable honor, admiration, and 
gratitude of all mankind. 

There is another doctrine, first promulgated by 
Rhode Island, which has proved important to the sta- 
bility of the American Union. The novel construc- 
tive feature which the framers added to the science of 
government, and embodied in the Constitution, was 
the judiciary. The keystone of this branch of the gov- 
ernment resides in the power of the Supreme Court 



RHODE ISLAND 115 

to declare what the organic law is, and thus to hold in 
check legislative omnipotence. This power finds ex- 
pression in the doctrine that the Supreme Court may 
declare unconstitutional and void an act of the legis- 
lature. Seventeen years before Marshall, in Marbury 
v. Madison, established this doctrine, the same prin- 
ciple was, for the first time, enunciated by the Supe- 
rior Court of Rhode Island in Trevett v. Weeden ; 
and the reasoning of Varnum, in his masterly argu- 
ment in support of this judicial prerogative, is closely 
followed by Marshall in his opinion. It is also an 
interesting circumstance which may be noticed in this 
connection, that in 1639 the town of Portsmouth ap- 
pointed a court with a jury of twelve men " to doo 
right betwixt man and man " — the first act known to 
colonial history which separated the judicial from the 
executive and legislative branches of the government. 
But the contributions of Rhode Island to the 
American Union are of wider import. Roger Wil- 
liams was the first modern statesman, and Rhode 
Island was the first modern democracy. She was 
more than a century in advance of her time. For 
her early government there was no precedent. It 
was a novel experiment, — an anomaly in history. 
The ablest statesmen and scholars of the time de- 
clared that such institutions were subversive of social 
order. The principles on which Rhode Island was 
founded have become the cardinal principles of free 



116 ADDRESSES 

government. She gave these principles to our politi- 
cal system, since she was the earliest to incorporate 
them into a civil compact. 

Rhode Island was founded upon self-government, 
religious freedom, human equality, and justice. De- 
nying the power of the Crown to confer sovereignty 
by right of discovery, she derived title to her territory 
by direct purchase from the Indians, by the deed 
of submission of the great sachems in 1643, trans- 
ferring the jurisdiction over the Narragansett lands 
to the King of England, and by the King's con- 
firmation of title in the colonists by the charter of 
1663. 

The Providence compact of 1637, in which the 
inhabitants submitted themselves to a government 
" only in civil things," is the earliest written instru- 
ment of a free government. It was a government 
limited to civil powers vested in the body of free- 
men upon terms of absolute equality. The code of 
1647, adopted by the General Assembly of all the 
people upon the union of the towns for mutual 
protection under the first charter, in its declaration 
of the principles of a free government, its bill of 
rights, its humane spirit, its comprehensiveness, 
boldness, and simplicity, anticipated by more than 
a century the legislation of the other colonies. 
Here was laid down, for the first time, the funda- 
mental doctrine which is subsequently found in the 



RHODE ISLAND 117 

Declaration of Independence, and which has become 
the basic tenet of democratic institutions, — that gov- 
ernment rests upon the " free and voluntary consent 
of all or the greater part of the free inhabitants." 
It contained provisions for referring all laws back 
to the people for confirmation or rejection. It was 
declared to be "a wholesome liberty for the whole 
or major parte of the free inhabitants to consider 
laws made by the Commissioners' Courts ; and upon 
finding discommodity in any law made by the sayd 
Courts, then orderly to show their dislike, and so 
to invalidate such law." We have here the first 
example in this country of a Federal Union. It was 
composed of independent towns. We have here, also, 
the first example of the modern doctrine of referen- 
dum, which was called a " wholesome liberty." 

These novel and advanced doctrines led the his- 
torian Bancroft to observe with truth : " Had the 
territory of the State corresponded with the impor- 
tance and singularity of the principles of its early 
existence, the world would have been filled with 
wonder at the phenomena of its history." If our 
Federal Union has been perpetuated for more than 
a century through the breadth of its liberty and the 
discipline of its people in the art of self-government, 
then Rhode Island should be accorded special recog- 
nition on this day for the " lively experiment " she 
inaugurated on the shores of Narragansett Bay one 



118 ADDRESSES 

hundred and fifty years before the adoption of the 
Federal Constitution. 

The great preparatory step to the formation of 
the Federal Union was the Revolutionary War. In 
the events which led to that war and its successful 
termination, Rhode Island took a leading part. Her 
practical independence of the Crown and her early 
institutions had bred an intensely democratic spirit. 
She was foremost in resisting the encroachments of 
the mother country and in her assertion of complete 
independence. Two months before the Declaration 
of Independence, Rhode Island severed her alle- 
giance to the British Crown. She was the first sover- 
eign State. Her opposition to the Stamp Acts was 
the earliest and most violent. She committed the 
first overt act of resistance. She shed the first 
blood of the Revolution in the capture and burn- 
ing of the Gaspee. Her privateers, manned by her 
intrepid seamen, were the scourge of British com- 
merce. Her subscriptions to the Continental loans 
were, relatively to her population and wealth, far in 
excess of those of any other Colony. She was the 
first State to take formal action respecting a Con- 
tinental Congress, and the first to elect delegates. 
Six months before Patrick Henry exclaimed in the 
Virginia Convention, " The war is inevitable — and 
let it come," Stephen Hopkins of Rhode Island 
declared in the first Continental Congress, which 



RHODE ISLAND 119 

sought only " a redress of grievances " by petition : 
" Powder and ball will decide this question, and any 
of you who cannot bring your minds to this mode 
of adjusting the question had better retire in time." 
It was through the efforts of Rhode Island that the 
Continental Congress passed the first act creating 
an American navy, and its command was placed 
in the hands of a Rhode Island officer. At the 
close of the Revolutionary War General Greene 
ranked next to Washington. It was one Rhode 
Island Commodore Perry who, after the Battle of 
Lake Erie, wrote those words which have since 
become the inspiration and motto of the American 
navy : " We have met the enemy, and they are 
ours." It was another Rhode Island Commodore 
Perry who carried western civilization to Japan. 

It is not strange that Rhode Island deliberated 
longer than the other States before adopting the 
Federal Constitution, in the absence from that instru- 
ment of a bill of rights securing the personal liberty 
for which she had ever struggled, and which was 
the corner-stone of her institutions. If she hesitated, 
something must be pardoned to the spirit of liberty. 
It should also be borne in mind that ratification 
was secured in many of the States only by slender 
majorities, and with the understanding that the first 
ten amendments would be speedily adopted. Since 
her admission, no other State has shown a greater 



120 ADDRESSES 

devotion to the Union, nor a loftier patriotism in 
the hour of trial. 

There are other features in Rhode Island's history 
which closely touch the life and well-being of the 
nation. It was commerce and the necessity of its 
regulation which led to the adoption of the Federal 
Constitution. Since the adoption, the unifying in- 
fluences of commerce, trade, and manufactures have 
promoted a .national spirit, cemented the bonds of 
union, and made us one people. In commerce and 
manufactures Rhode Island is pre-eminently distin- 
guished. The sea loves freedom, and freedom loves 
the sea. Her geographical features, combined with 
her democratic institutions, shaped and controlled 
the activities of her people. They fostered a com- 
mercial spirit, and her beautiful bay invited the 
commerce of the world. They bred a sturdy, inde- 
pendent, enterprising, seafaring race, with the liberal 
spirit and hospitality which are born of the sea. In 
the French and Spanish wars her privateers swept 
the main, and her annals are full of daring deeds. 
At the close of the eighteenth century the sails 
of her merchantmen whitened every ocean, and her 
merchant princes brought riches and culture to the 
State. When her commerce was destroyed by forces 
beyond her control, she turned with the same en- 
terprising spirit to her rivers and waterfalls for 
the development of manufactures. From a race of 



RHODE ISLAND 121 

ship-builders and merchants, she became a race of 
mill-builders and manufacturers. In the person 
of Samuel Slater she founded the cotton industry 
of the country. She is the birthplace and home of 
American manufactures. From the feeblest of the 
Colonies and the smallest in territory, she has be- 
come relatively the greatest State in population 
and wealth. Within her borders are found all the 
elements which enter into a free, enlightened, and 
prosperous commonwealth. She stands in the front 
rank of progress, not alone in material things, but 
in those which are higher, — the liberal spirit, hospi- 
tality, and culture of her people. In the industrial 
and mechanical arts, in invention, in the skill of 
her artisans, she takes a leading position. In the 
fashioning of silver and gold she is unexcelled. In 
the manufacture of cotton, wool, machinery, tools, 
and other products, she has few rivals. In full sym- 
pathy and accord with the sentiment which inspired 
this Exposition, and with its aim and purpose, she 
has brought here her best works in the industrial 
arts and other exhibits of a higher character, illus- 
trative of many phases of the life of her people and 
the lines along which they have travelled in reaching 
their present high plane of development. But the 
noblest exhibit which Rhode Island brings to this 
commemoration of a century of membership in the 
American Union is her history. 



122 ADDRESSES 

This Federal Union has stood for one hundred and 
fifteen years. It has surmounted the gravest peril 
to which it was exposed, — a disputed sovereignty. 
It has proved to be the highest and most perfect 
form of government. It combines the power and 
strength of a great nation with local self-govern- 
ment and the largest liberty. It has the capacity 
of assimilating many different races, and moulding 
them into one homogeneous people. It has added 
State after State to the Union, and its territory now 
stretches from ocean to ocean and to possessions 
beyond. It has demonstrated the adaptability of a 
Federal system to extend over a continent; and in 
the union of these imperial commonwealths it has 
afforded a model and a precedent for the federation 
of the world. 

The era of constructive government has passed. 
The struggles of our fathers have ended. Inde- 
pendence, liberty, and a stable Federal compact are 
accomplished facts. We are a nation in all things 
which concern the general welfare, while the individ- 
ual is protected by the organic law which covers 
every known personal right. The system has been 
perfected. The structure is complete. Our con- 
tinued safety no longer lies in adding to or chang- 
ing the framework of our government. It is not 
the American Union or democracy which is now 
on trial, but the American people. 



RHODE ISLAND 123 

The grave questions which confront society to- 
day are economic and industrial rather than political. 
They involve the regulation and equalization of social 
conditions. These issues lie outside of legislation. 
They rest in the domain of morals. Government 
and laws have their limitations. They cannot make 
wealth without labor. They cannot make men of 
equal capacity and energy. If these questions seem 
insoluble, if the outlook at times appears dark, let 
us take courage and inspiration from the seemingly 
insurmountable obstacles which our fathers overcame 
in the making of the nation. Let the mind run 
back to the midnight winter of Valley Forge ; to 
the hour when the Constitution hung trembling in 
the balance; to the time when brother and brother 
throughout the land were divided into hostile camps. 

Deeper than the logic of the rights of capital and 
labor, deeper than the academic discussion of individ- 
ualism and socialism, the solution of these questions 
will be found in the broad humanity, the sense of 
fairness and justice, of the American people; just as, 
in the building of the nation, we discovered that 
beneath the logic of constitutional sovereignty, be- 
neath the final analysis of political issues, our safety 
lay in the intelligent judgment and sound sense of the 
great body of the people. 

The same broad and liberal spirit that made us a 
nation must be directed to the social and industrial 



124 ADDRESSES 

problems of the time. As it was the spirit of national 
unity that built up the Union, so it will be the spirit of 
humanity which will preserve society. As the nation 
is one and indivisible, so the whole people are one and 
indivisible. The well-being of the entire community 
is inseparable from the well-being of each individual 
of which it is composed. All classes are indissolubly 
bound together. When we fail to realize this truth, 
we become un-American, — a class apart. Our destiny 
lies hidden in the spirit which teaches that we cannot 
be of the rich unless we are of the poor, we cannot be 
of the capitalist unless we are of the wageworker, we 
cannot be of the North unless we are of the South, 
we cannot be of America unless we are of the world. 
This is the true American spirit which made the 
nation and will transmit it to our posterity. This is 
the realization of the great lesson which this Expo- 
sition inculcates, — the unity of the human race and 
the ties which bind us to all mankind. 



THE PROBLEM OF GOVERNMENT 125 



AMERICA'S SOLUTION OF THE PROBLEM 
OF GOVERNMENT 

Fourth of July Oration delivered in Faneuil Hall before the City 
Council and Citizens of Boston at the Celebration of the One 
Hundred and Twenty-ninth Anniversary of the Independence 
of the United States, July 4, 1905. 

Mr. Mayor and Fellow Citizens : 

ON the Fourth of July, 1776, our fathers 
ceased to be colonists of Britain, and be- 
came an independent people. On that day 
the representatives of the United States of America 
in General Congress assembled, at the City of Phila- 
delphia, declared that the thirteen united Colonies 
possessed "full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all 
other acts and things which independent States may 
of right do." 

On that day, upon a new continent, and upon a 
magnitude hitherto unknown, was begun, in the 
words of Bryce, " the most remarkable experiment 
in government the world has yet witnessed." 

The history of mankind for three thousand years 
pointed against the success of this experiment. The 
teachings of philosophers and statesmen of all ages 



126 ADDRESSES 

foretold its failure. Many of our own great leaders 
were distrustful of the result. 

One hundred and twenty-nine years have passed 
since that eventful scene in Independence Hall, and 
lo ! we now behold, as the outcome of this experi- 
ment, the fairest picture of government which ever 
met the eye of man. Oh, that the great patriots 
of this storm centre of Revolution might look down 
upon this scene ! Would that the heroic band who 
signed the Declaration might gaze upon their country 
to-day! Would that all the great founders of the Re- 
public might behold this United States of America 
on this Fourth of July, 1905 ! 

Imagine the " transports of enthusiasm " of John 
Adams, as, through "the rays of ravishing light and 
glory," he finds his prophecy fulfilled a thousand fold. 
Picture to yourselves the thoughts of Otis — that 
14 flame of fire " in whom " Independence was born " 

— as he perceives the "liberties" which the people 
here enjoy! Call to your minds, as he looks upon 
this wonderful progress of American freedom, the 
joyous emotions of that proscribed and inflexible 
patriot statesman, Samuel Adams, whom no fear of 
death could induce " to abandon the righteous cause 
of his country." Think of the exaltation of John 
Hancock, could he look down upon us in this hour 

— he who put the question, " Shall the Declaration 
be adopted ? " and who, at the risk of life and fortune, 



THE PROBLEM OF GOVERNMENT 127 

affixed his imperishable signature to that Charter of 
Liberty. With what an overwhelming sense of grati- 
tude would Jefferson witness the triumph of the 
immortal principles of the Declaration in the New 
World, and their seemingly rapid conquest of the 
Old ! What feelings of proud satisfaction would fill 
the lofty soul of Hamilton as he surveys the stability, 
the elasticity, and the reserved strength of the Con- 
stitution after the lapse of more than a hundred 
years ! Conceive the joy of Franklin as he realizes 
the commanding position of the United States among 
the nations of the earth, and those splendid achieve- 
ments of American diplomacy which are fast making 
this country the arbiter of the peace and destinies 
of the world! And last, and greatest of all, let us 
contemplate Washington as he gazes upon the power, 
the renown, and the grandeur of his country to-day, 
and contrasts it with the America of the Revolu- 
tion, or the America as it last met his mortal vision, 
— a peaceful, prosperous, progressive, law-abiding, 
enlightened democracy of eighty millions of people, 
extending under the Federal Constitution over a 
continental area, embracing forty-five great States 
and island possessions which circle half the globe ! 

On this anniversary of the nation's birth we may 
well ask ourselves what is the cause of all this — what 
is the explanation of this American phenomenon in 
government which has so astonished the world, and 



128 ADDRESSES 

upset all the teachings and predictions of European 
thinkers and statesmen ? How has it happened that 
the United States, in a manner and upon a scale 
hitherto unknown, has solved this problem of govern- 
ment, — the most difficult and complex of all human 
problems, and yet the most momentous, since upon 
the institutions of a country depend the well-being 
and happiness of the people? There must be some 
explanation, some underlying cause. Two powerful 
nations, one in the Old World and the other in the 
New, occupying immense tracts of territory, started 
together more than a century ago to solve, upon a 
vast scale, the problem of government. Why has 
Russia failed and America succeeded ? Has this 
country discovered a new brand of government as 
well as of diplomacy ? 

The solution of this problem becomes the more re- 
markable when we reflect that the United States has 
apparently disregarded, in the structure of its govern- 
ment, every previously recognized canon of stability 
and unity. It has ignored the strength and personal 
loyalty of monarchy, the wisdom and conservatism of 
aristocracy. It has not depended upon the superior 
knowledge, experience, and leisure of any class. It 
has taken, historically speaking, the two weakest forms 
of government, and created the strongest political or- 
ganization in the history of mankind. Philosophers 
have ever told us that a democracy is fickle, short- 



THE PROBLEM OF GOVERNMENT 129 

lived, and generally corrupt and tyrannical. They 
have also said that a Federal Union, from its inherent 
nature, is the most complex, delicate, and unstable 
form of government known. Disregarding all these 
admonitions, the American people have adopted both 
these political systems. Here is exhibited in its pur- 
est form, compatible with the representative system, a 
democracy, a government by the people, self-govern- 
ment. Here also is exhibited a Federal Union in its 
most perfect form and upon a vast magnitude. How 
has it come to pass that we have made democracy a 
success, a Federal system a success — liberty, equality, 
fraternity, a success — with all the countless blessings 
which have come to the people from these political 
conditions ? What seed has been planted in these in- 
stitutions which has brought forth such splendid fruit ? 
What new principle in government has America dis- 
covered which will explain her wonderful progress, 
her unity, and her strength? How has it happened 
that the United States has emerged from every great 
national crisis stronger, wiser, and more confident ? 
What is the cohesive force in these institutions which 
has enabled them to withstand the shock of civil 
war, the freeing of four millions of slaves, a disputed 
Presidential succession, and every peril to which the 
country has been exposed ? To what unifying influ- 
ence in our form of government can be ascribed the 
power of assimilating and moulding into one homo- 

9 



130 ADDRESSES 

geneous people the multitude of new-comers from 
other lands, of different nationalities and traditions, 
who have made America their home ? Why is it, 
if by chance they revisit their native land, they return 
to America with increased love for this country, and 
that they and their descendants are not excelled in 
devotion and loyalty to American institutions ? How 
has it come to pass that American diplomacy is con- 
quering the world, and that to-day the Great Powers 
are looking to us as the only hope of peace ? 

During the past century the map of Europe has 
changed. Dynasties have been overthrown; new 
governments have arisen. There is no European 
country at the present time in which there does not 
exist an organized party in favor of a change in the 
form of the government or in some of its organic 
features. What is the potent cause which has main- 
tained unimpaired American institutions, and which 
has instilled into every American his absolute, un- 
questioned faith in the government of his country 
and in her future high destiny ? Whence has sprung 
that supreme trust in the American people which 
sustained Washington through the doubt and gloom 
of the Revolution, and which upheld and comforted 
Lincoln during the darkest hours of the Civil War ? 

From the Declaration of Independence down to a 
comparatively recent period, and especially at every 
critical stage in our progress, the world has been 



THE PROBLEM OF GOVERNMENT 131 

filled with prophets of evil omen. De Tocqueville, 
seventy years ago, foretold our decline, if not our 
downfall, through the tyranny of the majority. 
Macaulay was filled with the most gloomy forebod- 
ings respecting the future of American institutions, 
although he was good enough to postpone the time 
when his New Zealander should sketch the ruins 
of the Capitol at Washington. " I have long been 
convinced," he said, " that institutions purely demo- 
cratic must, sooner or later, destroy liberty or civili- 
zation, or both." " Your fate I believe to be certain, 
though it is deferred by a physical cause." " Your 
Constitution is all sail and no anchor." " When a 
society has entered on this downward progress, 
either civilization or liberty must perish. Either 
some Caesar or Napoleon will seize the reins of 
government with a strong hand, or your republic 
will be as fearfully plundered and laid waste by 
barbarians in the twentieth century as the Roman 
Empire was in the fifth, with this difference, that 
the Huns and Vandals who ravaged the Roman 
Empire came from without, and that your Huns 
and Vandals will have been engendered within your 
own country by your own institutions." The his- 
torian Freeman prophesied the exchange of ambas- 
sadors between the North and the South before the 
year 1869. The publicists and statesmen of Europe 
foretold the dissolution of the Federal Union before 



132 ADDRESSES 

the Civil War. They were also convinced beyond 
doubt that the North would never succeed in that 
war, and, after the close, they were equally certain 
that the Union was irretrievably wrecked, and that 
the South would come back as conquered provinces 
under some new and stronger form of government. 

Why has our experience refuted these predic- 
tions ? Why have all the prophets proved to be 
false prophets ? The circumstances surrounding the 
settlement of our forefathers in this country do not 
afford an adequate explanation. These results can- 
not be accounted for by the prodigality of nature 
as exhibited in land and forest and mine, nor by 
our freedom from powerful and aggressive surround- 
ing nations. Nor can they be accounted for by 
reason of race temperament or character. Nor can 
they be explained upon the theory that our fore- 
fathers brought with them the town meeting, the 
Magna Charta, and the Bill of Rights, and left 
behind them the mediaeval institutions of Europe. 
While these auspicious conditions may have exerted 
a powerful influence, they present at the most only a 
partial explanation of our remarkable history. The 
true explanation, the real solution of the problem, 
must be sought for in some more comprehensive and 
fundamental cause. 

America's solution of the great problem of govern- 
ment, the explanation of this American phenomenon, 



THE PROBLEM OF GOVERNMENT 133 

is found in the plain wisdom of the plain people. It 
has its origin in the mind and conscience of the great 
body of citizens, in their honesty, intelligence, and 
fair-mindedness, in their practical judgment and sense 
of what is proper and right. It is based upon the 
utilization of the common sense of the average man, 
or the collective common sense of the multitude of 
average men, as the active, controlling force in 
government. It is, in its essence, simply the town- 
meeting principle of government extended over a 
vast empire. In this common-sense principle of 
government, which is merely the expression of the 
plain wisdom of the plain people, lies the key, the 
only key, which unlocks the remarkable develop- 
ment and achievements of American civilization 
during the past century. 

There are certain inborn qualities which are the 
common heritage of mankind. The human race is 
endowed by nature with common sense, natural 
understanding, practical judgment, a sense of what 
is just and right. These qualities are distinct from 
the endowments of genius or the acquisitions of 
learning. They are unaffected by logical abstrac- 
tions or the imagination. They are unaided by 
any art, method, or system of rules. They are de- 
veloped and strengthened by the common every-day 
experiences in life and in business. It is these quali- 
ties of common wisdom which enter into, direct, and 



134 ADDRESSES 

control the judgment of the average man and the 
collective judgment of the mass of average men. 
In the sphere of government, these qualities are 
further aided in their exercise by local self-govern- 
ment, by free discussion, and by a system of pri- 
mary education. 

The great truths of the Declaration — " That all 
men are created equal, that they are endowed by 
their Creator with certain unalienable rights, that 
among these are life, liberty, and the pursuit of 
happiness. That to secure these rights, governments 
are instituted among men, deriving their just powers 
from the consent of the governed " — appeal to these 
natural qualities in man. The great principles of 
peace, humanity, charity, the common brotherhood 
of man, appeal to the same inborn qualities. 

Hitherto governments have suppressed these nat- 
ural qualities in mankind. The practical wisdom 
and good sense of the average citizen, or the mass 
of average citizens, have never been recognized as the 
active controlling force in the State. Governments 
have hitherto proceeded on the theory that it was 
necessary to have a governing class who were spe- 
cially qualified, by reason of superior knowledge and 
experience, to manage public affairs. The result has 
been that society has almost universally accepted 
some form of autocratic or class government — the 
rule of a king or of an aristocracy — as the lesser 



THE PROBLEM OF GOVERNMENT 135 

evil. The ability of the people to govern them- 
selves was denied. It was not believed that any 
such governing faculty was born in man. No con- 
fidence was placed in the common sense of the 
great body of citizens as the ruling power. Liberty 
and self-government were denied mankind because 
it was thought that these privileges were subver- 
sive of civil order. 

For the first time in the history of the world, 
the United States has availed itself of the plain 
wisdom of the plain people, of the sense and con- 
science of the average man, or, more properly speak- 
ing, of the mass of average men, as the ruling force 
in the State. Never before has government relied 
upon these natural qualities as the ultimate and 
the controlling power in public affairs. This is 
America's discovery. This is her gift to humanity 
and to civilization. She has made known man's 
capacity for self-government, and this is her crown- 
ing glory. 

It is true that there have been some previous 
examples of popular governments, notably in ancient 
Greece and in mediaeval Italy ; but these attempts at 
self-government were made under adverse circum- 
stances and upon a small scale. This American 
theory has never before been fully tried under favor- 
able surroundings, and upon a national scale. Here 
the soil was well prepared. " God had sifted three 



136 ADDRESSES 

kingdoms to find the wheat for this planting." The 
country was new, of vast extent, and of unsurpassed 
natural resources. The wide ocean separated this 
continent from the powerful nations of the Old 
World. Our fathers had brought with them local 
self-government and the fundamental principles of 
personal liberty. It thus appears that, notwithstand- 
ing these former examples of popular government, 
the United States for the first time has really 
afforded the proper opportunity for the common 
people to test their ability to govern themselves, 
and that we were the first to discover and utilize 
this common-sense principle of government, founded 
upon the judgment of the mass of citizens, and to 
make it the active and controlling governing power. 

In the progress of American institutions, this new 
governing force, resting on the general sense of the 
body of citizens, has become all-powerful — the abso- 
lute master of the State. It has supplanted the true 
function of the representative system, and dominates 
the whole machinery of government. Executives 
and legislatures bow before this voice of the people. 
It fears nothing. It seeks only to do what is proper 
and right. We call it public opinion. It began to 
assert itself at an early period. John Adams relates 
that for some time the vote of the Convention was 
constantly against the passage of the Declaration. 
" For many days," he says, " the majority depended 



THE PROBLEM OF GOVERNMENT 137 

on Mr. Hewes of North Carolina. While a mem- 
ber one day was reading documents to prove that 
public opinion was in favor of the measure, Mr. 
Hewes suddenly started upright, and lifting up both 
hands to heaven, as if in a trance, cried out: ' It is 
done, and I will abide by it!'" Our recent history 
affords startling illustrations of its irresistible power. 
In other countries, like England and France, where 
liberal institutions exist, the people are satisfied with 
electing their agents to carry on the government. 
This is not the case in the United States. Here 
public officers are and remain the servants of the 
people, to execute at all times their sovereign will. 

This striking phase in the development of our 
institutions has been pointed out recently by Bryce, 
in his "American Commonwealth." Speaking of 
public opinion, he says: 

" It stands above parties, being cooler and larger 
minded than they are ; it awes party leaders, and 
holds in check party organizations. No one ventures 
openly to oppose it. It determines the duration 
and the character of national policy. ... It is the 
central point of the whole American policy. . . . 
It may sometimes be long in speaking, but when 
it speaks, it speaks with a weight which the wisest 
governing class cannot claim. . .' . It grows up, not 
in Congress, not in State legislatures, not in those 
great conventions which frame platforms and choose 



138 ADDRESSES 

candidates, but at large among the people. It is 
expressed in voices everywhere. It rules as a per- 
vading, impalpable power, like the ether which 
passes through all things. It binds all the parts 
of the complicated system together, and gives them 
whatever unity of aim and action they possess." 
"Towering over Presidents and State governors, 
over Congress and State legislatures, over conven- 
tions and the vast machinery of party, public 
opinion stands out in the United States as the 
great source of power, the master of servants who 
tremble before it." 

Our whole history illustrates the soundness of this 
new governing force ; in other words, that the prac- 
tical judgment of the mass of citizens has been wise 
and right. The Declaration of Independence was no 
sudden nor hasty act. The people had petitioned, 
and petitioned in vain, for the redress of grievances. 
They were driven to independence only after re- 
peated acts of oppression, and as a last resort. And 
with independence the people saw the practical neces- 
sity of a closer union of the Colonies. Independence 
and union were always associated together in the 
popular mind. When the Articles of Confederation 
proved too weak for practical governing purposes, 
a stronger union was entered into under the Federal 
Constitution. Unfortunately, there grew up under 
this Constitution two opposing, irreconcilable social 



THE PROBLEM OF GOVERNMENT 139 

systems. Seeking to avoid the inevitable conflict 
between freedom and slavery, the people for forty 
years tried compromise after compromise. But when 
the hour of battle came they rose in their supreme 
power and declared : " We join ourselves to no 
party that does not carry the flag and keep step to 
the music of the Union." The theoretical argument 
of State sovereignty, founded upon the nature of 
a Federal compact, the practical judgment of the 
people rejected. The so-called invincible logic of 
Calhoun made little impression on the popular 
mind. The plain sense of the plain people revolted 
against the idea of a dismemberment of the Union. 
Here was a land designed by nature for the occu- 
pancy of one people, whose great waterways, moun- 
tains, and plains must not be divided between two 
or more independent nations. One people had sub- 
dued this wilderness. One people had fought the 
War of the Revolution, and established the Consti- 
tution, — a people made one by a common lineage, a 
common language, a common history, common strug- 
gles, common sacrifices, common institutions, and a 
common religion. There was no answer in the minds 
of the people to these practical arguments, and the 
Civil War was carried on until the Union was re- 
stored. To the success of that war it became in- 
dispensable to clothe the President with almost 
autocratic powers ; and the good sense of the people 



140 ADDRESSES 

responded to this situation by declaring that the 
Federal Constitution must be made elastic enough 
to save the country. 

The weakest spot in a Federal system of govern- 
ment, outside of the doctrine of State sovereignty, 
is the election of the Chief Executive. There was 
no constitutional way for meeting the disputed Presi- 
dential election of 1876; but the people insisted 
that this crisis must be met in a peaceful way, even 
though means were provided outside the boundaries 
of the organic law. Disputed successions have 
caused numerous long and bloody wars in the mon- 
archies of the Old World. The approval of the 
Electoral Commission and the. endorsement of its 
decision is one of the strongest illustrations of the 
practical wisdom of the people as the ruling force 
in government. 

In the events preceding the Spanish War, the 
popular mind, although wrought up to the highest 
tension, acted with the utmost calmness, and war 
was not declared until it was demanded by the dic- 
tates of humanity as well as national honor. 

While the general sense of the people has always 
been right with respect to broad questions of public 
policy, it may be claimed that this is hardly true con- 
cerning comparatively minor issues. I maintain, how- 
ever, that on questions like the tariff, the currency, 
civil service reform, and all questions which relate to 



THE PROBLEM OF GOVERNMENT 141 

the administration of government, the judgment of 
the masses has been equally wise. It may take a 
longer discussion of these more difficult and com- 
plex subjects before the popular mind reaches a full 
and intelligent understanding of them, and there 
may be temporary setbacks ; but our experience in 
every case shows that in the end the decision of 
the people has been right. 

The same common sense which has characterized 
the rule of the people has also guided our great states- 
men in the construction of the machinery of govern- 
ment, in the interpretation of the Constitution, in our 
foreign relations, and in the critical periods of the 
nation's history. 

The framers of the Constitution were men of strong 
common sense and practical wisdom. They were 
neither dreamers nor theorists nor revolutionists. 
They sought to solve the great problem of the hour 
by rational means. The logic of the situation de- 
manded some kind of Federal Union. This was the 
only form of government adapted to thirteen inde- 
pendent States. They set about to form such a polit- 
ical system by remedying what experience had taught 
them were the defects in the old Articles of Confed- 
eration. They cured these evils by making the new 
Constitution bear directly upon the people instead of 
upon the States, by granting certain general powers 
to Congress, such as the regulation of commerce, by 



142 ADDRESSES 

* 

the establishment of the Federal Judiciary, and by 
other changes. They also reconciled by compromise 
or elimination conflicting interests and jealousies. So 
successful were their efforts that Gladstone has de- 
clared that " The American Constitution is the most 
wonderful work ever struck off at a given time by the 
brain and purpose of man." 

In the construction of the Constitution the Supreme 
Court have ever been guided by practical wisdom 
rather than abstract theory. They have interpreted 
that instrument to meet the wants and necessities of 
a great and progressive people, who were extending 
over a new continent, and whose social needs and 
national aspirations were constantly changing. They 
have applied to its provisions the great doctrine of 
reasonableness. They have placed a liberal construc- 
tion upon its general powers when a national exi- 
gency demanded it. When it became absolutely vital 
to the safety of the Republic, during the Civil War, 
to issue paper money as a legal tender, the court 
sustained the constitutionality of the act, as coming 
within the implied powers of the Constitution, al- 
though the direct grant of such a power in the body 
of the instrument had been expressly excluded by the 
framers. Listen to the common-sense view of Mr. 
Justice Miller on this subject: 

" The coin in the country, if it could all have been 
placed within the control of the Secretary of the 



THE PROBLEM OF GOVERNMENT 143 

Treasury, would not have made a circulation sufficient 
to answer army purchases and army payments, to say 
nothing of the ordinary business of the country. A 
general collapse of credit, of payment, and of business 
seemed inevitable, in which faith in the ability of the 
government would have been destroyed, the rebellion 
would have triumphed, the States would have been 
left divided, and the people impoverished. The 
National Government would have perished, and, with 
it, the Constitution which we are now called upon to 
construe with such nice and critical accuracy." 

The history of American diplomacy affords a most 
striking example of this common-sense principle of 
government and of its power and effectiveness. The 
secrecy, subtlety, and reserve which characterize the 
diplomacy of the Old World have been abandoned. 
Our intercourse with foreign nations is marked by 
openness, directness, simplicity, while observant of all 
customary proprieties and courtesies. It has been 
distinguished by an honesty of purpose and a high 
moral tone. It has also been pacific, humane, and con- 
ducted with due recognition of the rights of others. 
Its triumphs of the past few years in the far East and 
elsewhere, and notably in the recent action of President 
Roosevelt, have placed the United States in the very 
front rank among the Great Powers of the World. 
America has become the peacemaker of nations. 

There are also numerous instances of the exercise 



144 ADDRESSES 

of the same qualities of plain wisdom and good sense 
by our great leaders in critical periods of the nation's 
history. What more sublime act of practical wisdom 
has the world witnessed than the conduct of Wash- 
ington at the close of the Revolutionary War and 
at the head of a victorious army? Casting aside 
personal ambition and the machinations of designing 
men, he journeyed to Annapolis, and, entering the 
Hall of Congress, took the seat assigned him. The 
presiding officer then declared that " the United States 
in Congress assembled were prepared to receive his 
communication." Rising from his seat with a maj- 
esty and dignity beyond that of any crowned king, 
Washington, in his most impressive manner, said : 

" The great events on which my resignation de- 
pended having at length taken place, I now have the 
honor of offering my sincere congratulations to Con- 
gress, and of presenting myself before them, to sur- 
render into their hands the trust committed to me, 
and to claim the indulgence of retiring from the 
service of my country." 

Turn to another instance of the highest practical 
wisdom by the author of the Declaration of Independ- 
ence. Jefferson had grave doubts of the power of 
the United States, under the Constitution, to acquire 
the vast territory covered by the Louisiana Purchase. 
"If, however," he wrote, "our friends shall think dif- 
ferently, certainly I shall acquiesce with satisfaction, 



THE PROBLEM OF GOVERNMENT 145 

confident that the good sense of our country will cor- 
rect the evil of construction when it shall produce ill 
effect." Waiving his scruples as to the constitution- 
ality of the measure, trusting to the good sense of the 
people to correct the evil, if it should prove to be 
such, and in obedience to the popular mandate, Jef- 
ferson took advantage of this golden opportunity, 
which, in the words of Grover Cleveland, "doubled 
the area of the young American nation, and dedicated 
a new and wide domain to American progress and 
achievement." 

In the construction of the Constitution, John 
Marshall disdained all theories and abstractions. 
He cared nothing for the doctrine that a Federal 
Union is a mere league of sovereign States, that 
theoretically there can be no such thing as a sov- 
ereign over sovereigns, that theoretically a sovereign 
State may annul any act of the central power and 
withdraw from the voluntary compact whenever it 
deems it expedient so to do. On the contrary, he 
declared that the Constitution must be made to 
fulfil the great practical purposes for which it was 
designed. The Constitution was ordained by the 
people as the paramount law of the land, supreme 
over Congress and State legislatures. It organized 
a government complete within itself. It established 
a perpetual Union, and safeguarded the rights of 
the people. It was not "a magnificent structure," 



146 ADDRESSES 

*' totally unfit for use," "but a competent guardian 
of all that is near and dear to us as a nation." It 
was by the application of these common-sense prin- 
ciples in the construction of the Constitution that 
Marshall cemented the Union and made us one 
people. 

We may turn for another example to that states- 
man and martyr President, the product of American 
institutions, the most American of all Americans, — 
Abraham Lincoln. Of him it was said: "His was 
the genius of common sense, — of common sense 
in action, of common sense in thought, of common 
sense enriched by experience and unhindered by 
fear." Lincoln was not only the incarnation of 
sound sense, but of prophetic vision. He early 
foresaw that the Union would be preserved and 
slavery abolished : " A house divided against itself 
cannot stand. I believe this government cannot 
endure permanently half free and half slave. I 
do not expect the Union to be dissolved ; I do 
not expect the house to fall, but I do expect it 
will cease to be divided." The war came. Its 
primary object was to save the Union; but im- 
bedded in that issue was slavery, — the most per- 
plexing and seemingly insoluble problem of the 
time. Lincoln was convinced that slavery could 
not be abolished under the Constitution except 
as a war measure, and that it would be fatal to 



THE PROBLEM OF GOVERNMENT 147 

the cause to precipitate action before the time was 
ripe. He managed this situation with consummate 
tact and skill. No solicitation, no vituperation, 
could hasten his action on this momentous issue. 
On August 23, 1863, he wrote Horace Greeley: "I 
would save the Union, I would save it the shortest 
way under the Constitution. ... If I could save 
the Union without freeing any slave, I would do 
it; and if I could save it by freeing all the slaves, 
I would do it; and if I could save it by freeing 
some and leaving others alone, I would also do 
that. What I do about slavery and the colored 
race, I do because I believe it helps to save the 
Union. I shall do less whenever I shall believe 
what I am doing hurts the cause, and I shall do 
more whenever I shall believe doing more will help 
the cause. I shall try to correct errors when shown 
to be errors, and I shall adopt new views as fast 
as they shall appear to be true views." 

At the time this letter was penned, Lincoln had 
already made a draft of the Emancipation Procla- 
mation ; but in his judgment the time had not yet 
arrived for its promulgation. The aspect of the war 
soon changed, and the proclamation followed. With 
what simplicity, power, and beauty did he define his 
position, and the ground on which he justified his 
action in this lofty closing passage : " And upon 
this act, seriously believed to be an act of justice, 



148 ADDRESSES 

warranted by the Constitution upon military neces- 
sity, I invoke the considerate judgment of mankind 
and the gracious favor of Almighty God." It was 
Lincoln's practical judgment in the supreme crisis 
of the nation's history which maintained the Union 
and abolished slavery. 

It has sometimes happened that the judgment of 
the people has been wiser than the judgment of their 
great leaders. Recall the movement by prominent 
members of his own party to force Lincoln to with- 
draw or resign, after his renomination in June, 1864, 
and how, in this dark hour of the Republic, the 
plain people, rising in their might, said : " No, this 
is our President. He sprang from our loins, he is 
confronted with the most difficult task which ever 
fell to mortal man; but if any one can save the 
Union and end this dreadful war, he can ; we trust 
him, we believe in him, we love him." The people 
then saw what the whole world soon acknowledged, 
— that Abraham Lincoln was the master spirit; that 
his grasp of the situation and knowledge of men 
were unexcelled ; that beneath that tall, gaunt frame, 
that unconventionalism, that homeliness of manner, 
tinged at all times with a weird melancholy, if not 
despair, there lay hidden the most gentle, the most 
heroic, the grandest soul in American history. 

They tell us that Americans are becoming fatalists ; 
that this is manifested in our belief in the " divine 



THE PROBLEM OF GOVERNMENT 149 

mission of the Republic," in our faith that God has 
chosen this nation to work out, under His protecting 
hand and for all humanity, a higher type of civiliza- 
tion, in the conviction that the Federal Constitution 
is the very Ark of the Covenant " whereon no man 
may lay rash hands," and in our intense confidence 
in the soundness of our institutions and the future 
of our country. Be it so ! We do not wonder at the 
charge. The success of this experiment in govern- 
ment is the marvel of history. This rule of the 
people has brought forth a political and social 
organization of which the world never dreamed. 
Here are exhibited political institutions which have 
shown a stability and at the same time an elasticity 
beyond those of any other form of government. 

Here is a society which possesses all the elements 
of the highest civilization and progress. Look for 
a moment at this country to-day from an educa- 
tional and religious point of view, as seen by two 
pre-eminent scholars and thinkers, one an English- 
man and the other an American. James Bryce says : 
" There has been within these last thirty-five years a 
development of the higher education in the United 
States perhaps without a parallel in the world." 

Charles W. Eliot says : " The successful establish- 
ment and support of religious institutions — churches, 
seminaries, and religious charities — upon a purely 
voluntary system, is an unprecedented achievement of 



150 ADDRESSES 

the American democracy. ... A similar exhibition 
of diffused mental and moral energy has accompanied 
the establishment and the development of a system 
of higher instruction in the United States, with no 
inheritance of monastic endowments, and no gifts 
from royal or ecclesiastical personages disposing of 
great resources derived from the State, and with but 
scanty help from the public purse. . . . The endow- 
ment of institutions of education, including libraries 
and museums, by private persons in the United 
States is a phenomenon without precedent or par- 
allel, and is a legitimate effect of democratic insti- 
tutions. Under a tyranny — were it that of a Marcus 
Aurelius — or an oligarchy — were it as enlightened 
as that which now rules Germany — such a phenom- 
enon would be simply impossible." 

But the most remarkable feature of this American 
democracy is its mighty reserve power. It is " the 
people's government, made for the people, made by the 
people, and answerable to the people." Each citizen 
is a ruler of the Republic, a participator in its great- 
ness and its glory, its joys and its sorrows. He knows 
that its fame and power rest on his own exertions. 
He realizes that he is a citizen of a vast country 
which stretches across a continent. He recognizes 
the strength and excellence of popular government, 
because he is one of the people. He makes a rigid 
Constitution elastic whenever it obstructs the progress 



THE PROBLEM OF GOVERNMENT 151 

or endangers the safety of the Republic. He feels the 
sense of personal responsibility which attaches to his 
own work. He is law-abiding, because he makes the 
laws and recognizes the necessity of obeying them. 
He believes in the fullest publicity, a free press, free 
inquiry, and a full discussion. He believes in equality 
and a fair field for all. He has faith in the " cura- 
tive power of freedom." He is conservative in his 
fundamental beliefs. He has faith in God and in 
mankind. He has the highest regard for public obli- 
gations and the financial standing of the nation. He 
believes in a state system of primary education. Being 
fair-minded and temperate, he will not consciously leg- 
islate against the rich or the poor. Possessing politi- 
cal power and civil rights, he has nothing to fight for, 
nothing to rebel against. He is self-confident, self- 
reliant, and cool-headed. He has the " independence 
of conscious strength." He is just, and regardful of 
the equal rights of others. He is opposed to war. 
He is magnanimous in victory. He is a believer in 
liberty, humanity, and peace and good-will among the 
nations of the earth. He is no iconoclast ;. he believes 
in building up, and not in tearing down. He cares 
little for tendencies, theories, or abstractions. He will 
take a little less individualism or a little more pater- 
nalism, a little less protection or a little more free 
trade, if at any time he thinks it best meets the public 
wants. He has a large reserve fund of practical wis- 



152 ADDRESSES 

dom. He addresses himself to the questions of the 
hour. The storms of party passion, the waves of cor- 
ruption, may beat about him, but he is always con- 
scious of his own supreme power, and that he is the 
master of the situation. He fears neither discussion 
nor agitation, socialism nor imperialism. He is him- 
self the dictator, the only Caesar whom he recognizes. 
He sits upon the throne. He both reigns and gov- 
erns. He is the State. He stands for the business 
judgment of the people as the controlling factor in 
government. He is the embodiment of common sense 
brought to bear as the governing force in the State. 
Herein lies the explanation of the all-subduing power 
and efficiency of this new force in government. This 
is the reason why this country has been able to main- 
tain a democratic form of government and a Federal 
Union for more than a century, to secure liberty and 
equality for all men, to meet and overcome every na- 
tional crisis, and to advance step by step to its pres- 
ent position of power and influence among the great 
nations of history. 

Fellow citizens, I believe in this celebration. I 
believe with John Adams that this anniversary should 
be forever dedicated to patriotic rejoicings, and where 
more fittingly than in this temple consecrated for so 
many generations to human liberty ? I believe that 
on this day every American should bend the knee in 
devout thankfulness and gratitude to Almighty God 



THE PROBLEM OF GOVERNMENT 153 

that his lot is cast in this favored land and under 
the mild sway of these institutions. Fortunate, pros- 
perous, free America ! Look in upon the past pages 
of history. Look out upon the present face of this 
star, and where will you find such a picture of human 
society ? Cross the Atlantic to the nations of Europe ; 
cross the Pacific to the nations of the Orient ; turn to 
the fairest picture of man in the ancient world, when 
Rome in the age of the Antonines "comprehended 
the fairest part of the earth and the most civilized 
portion of mankind " : contrast these pictures of so- 
ciety with the comfort, the well-being, the happiness 
of the people, which America presents at this hour. 

Our political horizon may not be free from clouds. 
There is no such thing as perfection on earth. Man 
is an imperfect being, and governments reflect that 
imperfection. Everything in this world is relative. 
We can only judge by comparison. We have our 
problems, but what are they in comparison with 
those which to-day confront England, France, Ger- 
many, Italy, Austria, Russia, and the nations of the 
far East? 

But our problems, it may be said, are serious, 
and how are they to be solved ? My answer is : 
They are to be solved as the framers solved the prob- 
lem of the Federal Constitution, as Lincoln solved the 
problem of emancipation, as Theodore Roosevelt and 
John Hay are solving the problems of diplomacy, as 



154 ADDRESSES 

the people have solved all the great problems since the 
Declaration of Independence — by unfettered discus- 
sion, by looking at the question from all points of 
view, by the reconciliation of jealousies and differ- 
ences, by mutual concession, by compromises, by fair- 
ness and honesty of purpose, by a recognition of mutual 
rights, by forbearance, human sympathy, and charity, 
and by ever bearing in mind that government has its 
limitations, that God did not create men of equal ca- 
pacity and energy, and that nature has decreed that 
wealth and labor are inseparable. 

Fellow citizens, this American Republic is marching 
to the conquest of the world. Every governmental 
change in Europe is a change in the direction of 
American institutions. Monarchy, class-rule, the tra- 
ditions of the past are crumbling, and States and 
peoples are drifting towards this American ideal. 
The benign rays from this new star are spreading 
hope and rejoicing to all mankind. It is to the West 
the world is now looking. It is from the West the 
world is now receiving light. This is the American 
age. We have discovered the best and the strongest 
governing force known to man. It is founded upon 
human nature. It is based on the primal elements of 
our being. It springs from God Himself. It pleads 
for the down-trodden and oppressed of all nations, for 
the abolition of caste and privilege and the mediaeval 
traditions which have held mankind in chains. It 



THE PROBLEM OF GOVERNMENT 155 

pleads for justice, for charity, for righteousness. This 
democracy of Washington and Lincoln is carved from 
the solid granite, and inscribed upon it in letters 
of gold are the eternal truths : " Peace, Humanity, 
Liberty." 

I have faith in the perpetuity of American institu- 
tions ; but if in the providence of God it shall ever 
be our destiny to share the fate of other nations, if 
it shall ever be found that this government by the 
people is mortal, if it shall ever come to pass in 
the far-off time that some future Gibbon shall write 
the history of The Decline and Fall of the American 
Republic, — our greatness and our glory will still 
survive, since we have accomplished a work more 
sublime than the intellectual beauty of classic Greece, 
more enduring than the Civil Law of imperial Rome, 
and grander than all the triumphs of civilization in 
the modern world; for we have given to humanity 
and the coming ages the immortal principle that 
man, made in the image of his Creator, is capable 
of self-government. 



APR 23 lv06 



